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CONTENTS
LAW AND POLITICAL CONTEXT
POLITICAL IDEOLOGIES AND THEIR REALIZATION FRAMED BY A GEOPOLITICAL CONFLICT: AN ANALYSIS OF “LIBERAL CONSTITUTIONALISM”
The article attempts to clarify the meaning of the concept of “constitutionalism”, the use of which in modern scholarly discussion often leads to misunderstandings. As proposed in this article, the term describes the relationship between the constitution as a legal act and ideology as a product of political goal-setting. A typical example of such a construction is “liberal constitutionalism”, meaning the implementation of liberal values in a constitution. Because there are many different interpretations of liberalism, liberal constitutionalism as a term can also be applied to different versions of its implementation. However, in the current political environment, there is a noticeable desire to monopolize use of this term, turning it into a designation of the value system of the Western geopolitical bloc. This is a particular manifestation of a more general phenomenon: the concepts of “constitutionalism” and “liberalism” being influenced by domestic and foreign policy contexts. Currently, in a number of European countries (e.g., Italy, Germany, France), parties at the right end of the political spectrum are becoming more and more popular. Some of these are being successfully integrated into the structures of the “liberal” Western world, which gives the concept of “liberalism” new nuances. Being a partial ideology, liberalism in practice is predisposed to enter into combination with other ideological sources. This can happen explicitly, allowing observers to evaluate the contribution of each of these ideologies to the overall concept. But such a combination can also act under the standard name “liberalism”, trying to disguise its mixed nature, which requires researchers to pay attention when analyzing new political trends. The classifications of ideologies used or implied in research papers are influenced by the political views of the authors, which also needs to be taken into account. In practice, liberal freedoms can be combined with various forms of government. Any decision about this should not be made dogmatically, but rather by taking into account the particularities of a specific society.
CONSTITUTIONALISM AND DELIBERATE PARTICIPATION
THE IDEA OF CITIZENS’ ASSEMBLIES AND OTHER FORMS OF CITIZENS’ PARTICIPATION IN CONSTITUTIONAL CHANGES AND PUBLIC INITIATIVES: EXPERIENCE AND PROSPECTS FOR CONSTITUTIONALIZATION IN THE NEW AND OLD WORLD
The article discusses the theoretical foundations and applied aspects of deliberative and popular constitutionalism, forms of citizen’ participation in constitutional changes and public initiatives. The author reveals scholarly approaches to understanding interaction between the constituent power and the democratic creation of constitutions and constitutional amendments, taking into account the conceptualization and use of democratic innovations in constitutional design and public space. In the countries of the New and Old Worlds, in the global South and in the countries of the European continent, institutions of popular participation, citizen involvement through assemblies and other forms are actively used. Some of the new forms of democracy are partially enshrined in constitutional norms or legislative acts. Among the forms of civic activity, which at the end of the 20th — first quarter of the 21st century are rightfully considered as various types of democratic innovations, an important place is occupied by the constitutional line of conversations and public constitutional assemblies, mini-publics, citizens’ assemblies, digital participation in the creation of a draft constitution and in legislative activity, participatory budgeting of projects, referendums on the initiative of citizens on constitutionally significant issues, constitutional amendments and draft constitutions. The study notes that in comparative constitutional experience and normative regulation, the meaning and nature of citizens’ assemblies as constitutional institutions are gradually changing, although such changes do not seem obvious. Citizens’ assemblies and other forms of collective participation perform the function of creating a broad informational, legal, organizational and political field for involving citizens and expert opinion; they become the deliberative environment in which issues of constitutional and national importance are discussed, including individual amendments to the constitution or a new draft constitution, legislative acts or legislative initiatives at the national level, but can also be used at the regional or municipal levels. The article used deliberative and epistemological approaches, methods of formal-legal, concrete-historical, comparative constitutional-legal and complex analysis.
DIGITALIZATION OF PUBLIC ADMINISTRATION
PRINCIPLE OF RESPONSIBILITY OF PUBLIC ADMINISTRATION IN THE CONTEXT OF DIGITALISATION
The principle of responsibility in the Soviet and post-Soviet administrative law is primarily considered from the perspective of responsibility of a citizen to the state, rather than the responsibility of the state to a citizen. The doctrine of Russian administrative law is still based on the approach of sufficiency of restoration of formal (objective) legality through the cancellation of an unlawful administrative act by an administrative body or its invalidation by a court decision. However, for the valid restoration of rights in the sphere of public administration it is not enough to recognize such an act as illegal, it is necessary to provide valid compensation to the citizen for the harm caused by the unlawful act. Establishment in article 53 of the Constitution of the Russian Federation of 1993 of the right of everyone to compensation by the state for damage caused by illegal actions (or inaction) of public authorities or officials created a constitutional basis for the development of the principle of property responsibility of public entities as a general principle of modern administrative law. This requires overcoming the dominant civilistic approach. The core of the principle is an unlawful administrative act. Consequently, the implementation of this principle directly depends on the level of development of administrative law, rather than civil law doctrines, particularly the doctrine of subjects carrying out public administration, legal forms of public administration, including the doctrine of invalidity of administrative acts. Digitalisation of public administration has a significant impact both on the organisational and legal forms of public administration and on the classical tools of public administration. Public administration, implementing functions with the use of information technologies, is characterised by a significant diversity of actors, each of which implements part of a single public function. The distributed implementation of public administration functions should not lead to the dilution or complete elimination of the property responsibility of public entities. Digital management products (algorithms, information systems, automated administrative acts) should be treated on par with classical forms of public administration (normative acts, administrative acts), which will allow applying the principle of responsibility when digital technologies are being used in public administration. Thus, the impact of digitalisation on public administration entails the need to adapt public tort law.
CONSTITUTIONAL DESIGN
CHALLENGES OF CONTINUITY AND INNOVATION IN CONSTITUTIONAL DEVELOPMENT: LATIN AMERICAN PRACTICE
Despite their common approaches, Latin American constitutions are characterized by national uniqueness. The countries of the region have made a significant contribution to the development of constitutionalism ideas by proposing the concepts of socialization of constitutions, judicial orders for the protection of constitutional rights and habeas data. In the process of democratizing political regimes, these countries have turned to their cultural origins, traditional notions of power and its legitimacy. The new constituent acts trace a change in the priorities of public policy, primarily due to the recognition of the principles of pluralism and diversity in various modifications, including legal pluralism, which implies the rejection of legal monism and the adaptation of national legal systems to the existence of traditional normative systems. Many Latin American constitutions are oriented towards participatory principles, citizen participation in public policy and social control. This is due, on the one hand, to the desire to overcome the consequences of authoritarian rule and, on the other hand, to the involvement of civil society institutions in the drafting of new constituent acts. According to expert estimates, indigenous peoples constitute 10% of the region’s population, and the interests of these peoples are expressed in the new constitutions by recognizing indigenous peoples and their associations as collective political entities; by establishing traditional forms of participation and representation for these peoples; and by allowing them to apply their own rules in relations between representatives of these peoples. The States of the region were among the first to realize the need to adjust anthropocentric approaches and recognize the rights of nature and its elements to exist and develop independently of human interests and needs. In the constitutions of Latin American States, there is a desire to develop original documents that take into account modern trends in the development of constitutional institutions and traditional legal culture, propose new approaches to solving the problems of overcoming the crisis of trust in the relationship between citizens and public authorities. These constituent acts contain many provisions “for the future”, which indicate the directions of regulation and may receive substantial content in the future.
BETWEEN LIBERALISM AND SOCIALISM: CONSTITUTIONALISM IN HONG KONG
FROM THE EDITORIAL BOARD
THE HONG KONG PROBLEM: POPULAR SOVEREIGNTY, CENTRALIZATION, AND THE CHALLENGES OF THE CRISIS AGE
In recent years, Hong Kong, a former British colony and now a region with special status within the People’s Republic of China, has become the object of increased attention from Beijing and the scene of large-scale civil protests. The central government of the PRC has attempted to secure greater control over the region through legislative interventions and neutralize growing political opposition; at the same time, residents of Hong Kong, resisting imposed control and demanding greater democratic participation in regional affairs, are becoming increasingly aware of their own political identity, distinct from that of mainland China. This study analyzes the causes and circumstances of the Hong Kong confrontation; however, its findings focus not on the contradictions in the relations between Hong Kong and the PRC, but on the contradictions of the entire modern constitutionalism and the modern model of statehood — a model based on the idea of popular sovereignty, but in practice reducing this idea to an insignificant fiction. Hong Kong, in the author’s opinion, is the most striking example of a society without constituent power, the rule of law without democratic participation of citizens in lawmaking. Examining the logic and long-term consequences of the centralization of government and the practice of tightening legislation, the author comes to the conclusion that the centralization observed today in China and around the world, as the simplest and most obvious solution, is a symptom and consequence of the aggravation of domestic and foreign policy problems of the respective states. For China, the assault on the autonomy of Hong Kong and the rights of the local population turns out to be a trap: the stronger the pressure, the fiercer the resistance and the more reasons for criticism of the Chinese leadership abroad, but there is no way to retreat, because the liberal otherness of this region is capable of undermining the foundations of the state system of the PRC from within. The author sees an unexpected way out of the current impasse in the federalization and democratization of the entire state, in the return of the subjectivity of the people to the current practice of constitutional relations.
IMPLEMENTATION OF THE PRINCIPLE OF “ONE COUNTRY, TWO SYSTEMS” IN HONG KONG: THE POSITION OF THE MODERN CONSTITUTIONAL AND LEGAL DOCTRINE OF THE PRC
The article examines the formation and implementation of the principle of “one country, two systems” in Hong Kong. This political principle, formulated in China at the beginning of the “reform and opening-up” course in 1978, is an important part of the process of peacefully restoring the territorial integrity of the country. Initially, it was intended to apply to Taiwan, but its implementation in practice began with Hong Kong (and Macau). The presentation of the principle of “one country, two systems” covers not only the process of political reorganization of Hong Kong, but also concerns issues of state sovereignty and security of China. In addition, this principle affects the interests of Hong Kong society in the field of ensuring stability and order in Hong Kong in the long term. After 1997, when Hong Kong returned to the People’s Republic of China (PRC), contradictions arose regarding the understanding and application of the principle of “one country, two systems”. One of the manifestations of this is the incorrect — from the point of view of the PRC — understanding of the content of this principle in Hong Kong. Another aspect of this set of issues is the complex political environment in Hong Kong. The wave of protests in 2019 against The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 has become the largest event in Hong Kong’s political life since its transfer to the PRC and the most difficult challenge for the implementation of the principle of “one country, two systems” in the Hong Kong special administrative region. The PRC’s position is that the principles of governance defined for Hong Kong in its Basic Law and the Constitution of the PRC should be strictly followed. At the same time, it is expected that the policy of protecting the national sovereignty and security of the PRC, development interests, and ensuring the long-term stability and prosperity of Hong Kong will be consistently implemented. The author of the article proposes the following four measures to solve these problems: 1) Hong Kong society should recognize the fundamentals of the political system of the PRC; 2) Hong Kong society should assume some responsibility for national security; 3) it is necessary to abandon the mindset of “opposing China and the need to fight” (逢中必反); 4) the public mood of “resisting the PRC” (拒中) needs to be revised, and violent and radical actions of “opposing the PRC” (抗中) and striving for “Hong Kong independence” (港独) should be suppressed.
CONSTITUTIONAL GUIDE
СONSTITUTIONALISM IN THE ISLAMIC REPUBLIC OF IRAN: IMITATION OR REALITY?
The image of the modern Islamic Republic of Iran in public consciousness is full of contrasts. On the one hand, there are photographs of cheerful and rather carefree-looking city women during the Shah’s rule, and on the other, massive crowds protesting against the monarchy. There are regularly held elections for president and members of parliament with results that are far from always being predictable, while there also is a theologian who has been head of state for more than 35 years. In this diverse range of contrasts, Iran is often perceived as a fundamentalist Muslim state where the word “republic” is only present in its name. However, eschewing emotional images, the author attempts to answer the seemingly obvious question of whether it is possible to speak of constitutionalism in relation to modern Iran. The answer will be significant for advancing a discussion about the possibility of “non-Western” constitutionalism and its characteristics. The author does not aim to create a detailed model of Iranian constitutionalism, if it indeed exists, but attempts to apply terminology inherent in the Western tradition of constitutionalism to the current state mechanism and legal system of the modern Islamic Republic of Iran to answer the question of whether Iranian constitutionalism is imitation or reality. The formation and functioning of the supreme bodies of state power in Iran are analyzed from the point of view of the principle of separation of powers. The institute of rights and freedoms of citizens in Iran is considered and the specifics of the influence of religious norms on this legal institution are shown. Using examples of the activities of state bodies and officials, it is shown that the state has an effective system of checks and balances. The author pays special attention to a state authority that has no analogues in world practice — the Expediency Discernment Council. Created to counteract the virtually unlimited religious control of the Guardian Council, the Expediency Discernment Council has for more than 30 years made decisions that allowed protection of the rights and freedoms of certain groups of Iranian citizens from restrictions dictated by blind adherence to religious norms. Based on this, the author considers the activities of the Expediency Discernment Council to be the embodiment of the specifics of the Iranian version of Muslim constitutionalism.
CONSTITUTIONAL MEMOIRS
THE CONSTITUTIONAL COURT OF RUSSIA IN 1995–2000: HISTORIOGRAPHY OF THE ISSUE FROM THE STANDPOINT OF A CONSTITUTIONAL SCHOLAR
This article is based on documentary, public, literary, and journalistic archival sources and is a result of the completed (continued) study of the second stage of the development of constitutional justice. Based on personal experience, gained in the years 1994–2000 as the Chairman of the Commission of the President of the Russian Federation on legislative proposals and First Deputy Chairman of the State Duma in the first convocation, and then as the Authorized Representative of the President of the Russian Federation in the Constitutional Court, the author interprets the judicial activity of this body (the development of the Constitutional Court and the Constitutional Court`s judges) and explains the aggravation of the problem of execution of its decisions during the second half of the 1990-s. The author evaluates the modernization period of the functioning of the Court and notes, in general, its significant role in in the intensification of the development of scholarly research in the sphere of constitutional justice. He outlines the doctrinal predictions from that time and discusses the immediate prospects for the development of the Russian model of constitutional justice as they appeared then. The author also states that at this stage of development, the contradictions of a political and organizational nature within the Federal Assembly and in the Constitutional Court itself have laid the foundation for discussions about potential changes to the Federal Constitutional Law “On the Constitutional Court of Russian Federation”. The scholars and practitioners had already supported the idea of introducing written proceedings into the constitutional judicial process, improving the mechanism for executing decisions of the Constitutional Court. But the proposals for a significant “revision” of the Federal Constitutional Law in terms of reducing the age limit for holding office of a constitutional judge and expanding the grounds for termination of judge’s powers, the possibility of appealing or reviewing decisions of the Constitutional Court, and “creating a judicial body” coordinating all the courts, including the Constitutional Court, were rejected or not perceived as serious. In general, this article shows that the Constitutional Court of the late 1990s — early 2000s, having overcome the mostly contradictory process of politicization, entered the new century with the “political and legal halo” of a completely modern by international standards judicial constitutional body with a tendency to shift the center of its priorities towards the protection of constitutional rights and freedoms of citizens and legal entities.