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06.05.2016 On 5 May a new issue №2 (111) 2016 of "Sravnitel'noe konstitucionnoe obozrenie" (Comparative Сonstitutional Review) Journal was published

CONTENTS 2 (111) 2016            

CONSTITUTIONAL WATCH

FEBRUARY – MARCH • 2016

Bolivia, Ireland, Kazakhstan, Macedonia, Moldova, Poland, Russia, Slovakia, South Africa, Switzerland, Turkey, USA

 

FOCUS: CONSTITUTIONAL AMENDMENTS

Mark Tushnet                                                                                                                                                    

Peasants with Pitchforks, and Toilers with Twitter:  Constitutional Revolutions and the Constituent Power

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. A provision that is unconstitutional at one period of time can be constitutional at another time period, if the originary constituent power has been exercised at some intermediate point. The originary constituent power is exercised in constitutional revolutions, which are not necessarily violent or illegal. In sum, this essay uses the theme of the unconstitutional constitutional amendment as the vehicle for providing some insights into what the constituent power “is”. The author summarizes his conclusions in showing that the constituent power can exercise itself through the forms of legality, but those forms cannot ultimately constrain the constituent power. The essay distinguishes between a purely conceptual version of the constituent power and a more sociological or real-world version, and argues that the former is superior to the latter.

Keywords: Constitution; Constitutional amendments; Constitution reform; Constituent Assembly; political community; constitutive power; proceduralization; constitutional revolution.

Mark Tushnet - William Nelson Cromwell Professor of Law, Harvard Law School (e-mail: mtushnet@law.harvard.edu).

 

Rosalind Dixon, David Landau                                                                                                     

Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment

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.” While such a doctrine may not be a complete solution to anti-democratic uses of constitutional amendment powers, it can create an additional hurdle to change. But such a doctrine should be approached with caution from a democratic perspective, because it can also create a significant road-block to the legitimate use of amendment procedures as a means of overriding courts decisions deemed unreasonable or unacceptable by a majority of citizens. In order to promote democracy rather than undermine it, any doctrine of unconstitutional constitutional amendment must be limited in scope. This article argues that because threats to a democratic order are so varied, and can be altered or staged by would-be authoritarian actors, limiting the doctrine to a narrow set of institutional provisions or principles defined ex ante is unlikely to be a stable solution. Instead, courts must rely on a broader doctrine that is nonetheless limited to constitutional amendments that clearly pose a substantial threat to core democratic values. This article also argues that an effective way to limit the use of such a doctrine is by tying its use to transnational constitutional norms. Engagement with transnational constitutional law will help to limit both the kinds of principles courts define as fundamental and the sorts of institutional changes that are alleged to pose a substantial threat to those principles. The article shows how engagement with transnational materials can serve as a workable check on a doctrine of unconstitutional constitutional amendment, helping to separate cases where the doctrine must be deployed to defend democracy from cases where its use is unnecessary. Key words: unconstitutional constitutional amendment, protection of democracy, constitutional review, comparative method in constitutional justice.

Keywords: unconstitutional change of the Constitution; protecting democracy; constitutional control; constitutional comparativism in justice.

Rosalind Dixon - Professor of Law, University of New South Wales, Faculty of Law (e-mail: rosalind.dixon@unsw.edu.au).

David Landau - Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law (e-mail: dlandau@law.fsu.edu).

 

Richard Albert​                                                                                                                                                                                               

Amending constitutional amendment rules

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. In this article, I demonstrate that existing written and unwritten limits to formally amending formal amendment rules are unsatisfactory, and I offer modest textual entrenchment strategies to insulate formal amendment rules against ordinary formal amendment in constitutional democracies where the constitutional text exerts an appreciable constraint on political actors. I draw from historical, theoretical and comparative perspectives to suggest that two principles – intertemporality and relativity – should guide constitutional designers in designing formal amendment rules in constitutional democracies.

Keywords:constitution; amendments to the constitution; amendments to the constitution amendment rules; protection of the rules for the amendments; differences between amendment and revision of the constitution; written and unwritten limits to formally amending formal amendment rules.

Richard Albert - associate Professor, Boston College Law School; Yale University (J.D., B.A.); Oxford University (B.C.L.); Harvard University (LL.M.) (e-mail: richard.albert@bc.edu).

 

Alexandra Troitskaya​                                                                                                                   

The Russian Constitutional Court and Review of Constitutional Amendments: To Open Wide the Door Ajar

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. First, one has to decide which constitutional provisions are unchangeable; second, one has to construct a model of a substantial review of amendments. There are different approaches to these questions in different countries in the world including: 1) explicit “eternity clauses” and explicit competence of the constitutional court to review amendments from point of view of substantiality; 2) explicit “eternity clauses”, silence on the competence and further either a self-supporting decision of the constitutional court to review amendments, or a refusal to judicial review and maintenance of “eternity clauses” rather as “soft law”; 3) absence of explicit “eternal clauses” supplemented by an activist judicial position in preservation of certain parts of the constitution on the basis of interpretation; 4) absence of explicit “eternal clauses” and refusal to judicial review of amendments. The paper considers jurisprudence of different bodies of constitutional review. The derived conclusions are applied to decisions of the Russian Constitutional Court which denies reviewing amendments at the moment, but could being more activist and fully assuming this function in the future.

Keywords: unconstitutional constitutional amendments, constitutional review, the Constitutional Court of the Russian Federation, laws of the Russian Federation on constitutional amendments.

Alexandra Troitskaya - Candidate of Sciences (Ph.D.) in Law, Associate Professor of the Constitutional and Municipal Law, Faculty of Law, Lomonosov Moscow State University (e-mail: stephany@mail.ru).

 

LIBER AMICORUM

Tamara Morshchakova – The Lady Justice

Pavel Blokhin​                                                                                                                               

Double Аnniversary. Constitutional Justice at the Service of Human Rights

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. The article also considers problems of the access of the citizens to the Court for effective judicial protection of their rights and freedoms. The author presents a broad insight into this discourse in the Russian judicial and scholar community, concluding that the main purpose of constitutional justice should be the protection of human rights and freedoms as the supreme value, as proclaimed in the Constitution of the Russian Federation of 1993.

Keywords: constitutional justice; fundamental rights and freedoms; judicial protection.

Pavel Blokhin - Chief Adviser in the Office of the Justice of the Constitutional Court of the Russian Federation, Assistant Professor at the National Research University – Higher School of Economics (St.Petersburg) (e-mail: dartpaulus@mail.ru).

Angelika Nussberger​                                                                                                                 

Independence of the Judiciary and Rule of Law in the Jurisprudence of the European Court of Human Rights

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. The Convention and the Court are also aware of the important link between rule of law and democracy and both ascend from accepting their interaction to a broader concept of the “European public order”. The article is based on examination of a large number of individual cases brought before the Court. Scrutinizing many important cases, it analyses some essential features of the rule of law – independence of the judiciary, in the first place, as well as fair trial, proportionality and legal certainty. The author draws attention to some of the new aspects in the Court’s jurisprudence. For example, the Court increasingly takes recourse to the “proceduralisation of justice”, i.e. focusing on the procedure, in compliance with basic requirements of rule of law. Thus The Court tries to find the way to judgements involving all those concerned in a fair trial.

Keywords: rule of law; human rights; democracy; European Court of Human Rights; European Convention on Human Rights; independence of the judiciary; legal certainty; proportionality.

Angelika Nussberger - Judge of the European Court of Human Rights, Professor of Law at the Cologne University (e-mail: angelika.nussberger@echr.coe.int).

 

Olga Chernishova, Grigory Dikov                                                                                                

Fair Trial Guarantees for Judges in the Practice of the European Court of Human Rights and in Other International Instruments

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. However, in the past two decades, the ECtHR has departed from its earlier position and adopted a more liberal approach which extended applicability of Article 6 of the Convention (which guarantees inter alia the right of access to court) to nearly all disputes related to the judge’s professional life. Nevertheless, despite its desire to make the case-law simpler, the test developed by the ECtHR to define applicability of Article 6 remains quite intricate. This article also analyses other international sources, such as the documents of the UN bodies, instruments of the Council of Europe and recommendations of the Venice Commission. The main conclusion of the article is that, on the one hand, there is a clear tendency of giving the judges universal judicial protection of their rights in the professional sphere. On the other hand, this tendency has its natural limits: for example, appointment of judges of the highest courts may be influenced by the “constitutional prerogative” of other highest State authorities participating in this process; so, this prerogative may potentially justify exclusion of such decisions from the judicial review. By contrast, imposing disciplinary liability on judges certainly requires proceedings of judicial character.

Keywords: status of judges; disciplinary proceedings; right of access to court; fair trial; Article 6; European Court of Human Rights; Venice Commission of the Council of Europe

Olga Chernishova - Candidate of Sciences (Ph.D.) in Law, Head of Legal Division, Registry, European Court of Human Rights (e-mail: ilpp-ccr@mail.ru).

Grigory Dikov - Lawyer, Registry, Venice Commission, Council of Europe (e-mail: grigory.dikov@free.fr).

 

Anatoly Kovler, Tamara Morshchakova​                                                                                     

The European Court of Human Rights and national courts: how to reach understanding? 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. According to the common opinion of this magisterial duo, the best way to achieve understanding, harmonisation and balance of the positions on human rights between the European Court and national courts is a dialogue of judges. And this learned talk is quite a very good example of such a dialogue. The basis for a judicial dialogue rests in the equality of the subjects under an international convention, which, consequently, discuss legal problems as equal members of the international community. The key to achieving mutual understanding between the judges of supranational and national courts is a common and mutual desire and readiness to take into account the peculiarities and different ways of legal development of a states or legal systems participating in international communication. The possibilities for such understanding rest on the agreement on the methodology of studying the state of the national legal systems. Looking into the practice of interaction of supranational (like the European Court of Human Rights) and national courts goes along with reflections on appeal procedures and judicial review in Russia as an efficient tool for the protection of rights and effective legal remedy. Anatoly Kovler reflected on the prevailing predisposition of the European Court judges toward a constructive dialogue and opinion exchange. In the conclusion participants of the dialogue turn to the appropriateness and expediency for the national courts to resort to the advisory opinion from the European Court of Human Rights. Tamara Morshchakova addressed the issue of possibility of reciprocal exchanging opinion requests between the courts – in order to ensure uniform interpretation and enforcement of the provisions of the international treaty and of decisions of the supranational jurisdiction.

Keywords: national and international jurisdictions; European Court of Human Rights; dialogue of judges; principle of subsidiarity; advisory opinions.

Anatoly Kovler - Doctor of Sciences in Law, Professor of Constitutional and of Municipal Law at the Moscow State University, Professor of Judiciary Studies at the National Research University – Higher School of Economics, Judge of the European Court of Human Rights (1999–2012) (e-mail: anatoliy@kovler.ru).

Tamara Morshchakova - Doctor of Sciences in Law, Tenured Professor, Faculty of Law, National Research University – Higher School of Economics; Judge of the Russian Constitutional Court (1991–2002) (e-mail: tmor23@mail.ru).

 

Tamara Morshchakova                                                                                                                 

Constitutional and judicial implementation of the European Convention on 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. The article also considers the circle of subjects in within the Russian legal system responsible for the judicial implementation of conventional rules of protection of the fundamental rights and freedoms translating the supranational regulation in this sphere onto the constitutional level. The author emphasises the consistency of constitutional fundamentals of the constitutional system with the rights and freedoms of citizens, as well as the importance of the principle of subsidiarity in the European Court jurisdiction as a basis of its interaction with national legal systems – in order to harmonize the positions of the latter and to ensure the enforcement of supranational judicial decisions. The article stresses the need for and the possibilities of the dialogue between national and international courts to help more efficient and effective development of the universal human rights system based on the recognition of both international standards and specific features of national legal institutions.

Keywords:constitutional implementation (enforcement) of international standards of the rights and freedoms; European Court of Human Rights; interaction of national and supranational jurisdictions; principle of subsidiarity and the compliance with decisions.

Tamara Morshchakova - Doctor of Sciences in Law, Tenured Professor, Faculty of Law, National Research University – Higher School of Economics; Judge of the Russian Constitutional Court (1991–2002) (e-mail: tmor23@mail.ru).

 

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF JUDGEMENTS

OF THE RUSSIAN CONSTITUTIONAL COURT

JANUARY – FEBRUARY • 2016



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