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In detail...

The Constitutional Control is

the Basis of the Democratic Legal State System

On the border of the centuries we are to speak about the results to appreciate the success achieved and comprehend blunders but at the same time we hope for the better future. The twentieth century is notable for many achievements which went down in the history of the modern civilization. The last decadeá of the twentieth century for aá number of states has become the time of constitutional reform.

With the termination of the existance of the USSR, the former Union Republics, have chosen the way of creation of independent states. There have been stated the complicated process of the formation of their own state attributes, lawful systems, democratization of constitutional and lawful institutions. There has come the time of formation new concepts of development of a state based on the uniform democratic values and principles. The consequence of the choice of the way made by the states in favour of democracy has become the formation and development of the constitutional control.

The constitutional control is one of the distinguishing features of the democratic lawful state. Eventually the constitutional control acquires new attributes and new contents. However, the unchangeable there shall remain the idea about the priority of rights and freedoms of a person, about mutual responsibility of a citizen and a state, about constrainability of a state by the law. At present it is not the principles prevailing in the lawful state but it shall be the goal of the whole state system, the goal of the policy of the separate democratic state.

Under the conditions of the radical reforming of the state there has stated the process of formation of new democratic states, the confirmation of the principles of respectful attitude to rights and freedoms of a person and a citizen, the formation of modern constitutionalism. The constitutional reforms are carried out on the account of the historical development and peculiarities of the life of the people. Thus, the great significance shall be given to the international practice and experience of constitutional reforms in other states. Nevertheless the realization of reforms goes at different speed and in different ways the main goal shall be to create with the help of the law efficiently acting instrument for the protection of rights and freedoms of a person and a citizen. And this shall be the basis of the development of interelationsá between the state andá society in all the countries with developed democratic traditions.

In the Pridnestrovskaia Moldavskaia Respublika beginning from the first day when there has been proclaimed the Declaration about state sovereignty there have been established the values admitted and protected by any democratic lawful state. Different sights of the global process of reforming have been reflected in the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

In Article 1 of the Constitution there has been stipulated that the Pridnestrovskaia Moldavskaia Respublika shall be a sovereign independent democratic legal state. The bearer of the sovereignty and the only source of the power of the Republic shall be its people.

The Constitution stipulates that the person, his rights and freedoms shall be the supreme value of the society and state. The protection of rights and freedoms of a person and a citizen shall be the duty of the state. The main fundamentals of the constitutional state system shall be democracy, the division of powers, equality of different forms of privacy of democratic variety of political institutions and opinions. Our Constitution has been adopted at the nation wide referendum andá for the Pridnestrovskaia Moldavskaia Respublika it has become the action of fundamental significance. It shall be the Fundamental, Supreme Law of the state. Therefore the Costitution of the Pridnestrovskaia Moldavskaia Respublika shall have the supreme juridical force and direct action on the entire territory of the state.

At the same time it is necesary to specify that the stipulation in the Constitution of the fundamental principles of the legal state does not mean that the state shall become legal automatically and all the proclaimed principles shall be realized. The formation of legal democratic state systemá shall inseparablyá be linked with political, economic reforms and undoubtly with lawful reform.

The formation of the legal state the realization of its principles cannot but account the necessity of creation of efficiently acting constitutional control capable to provide the protection of the Constitution, the protection of rights and freedoms of a person. The reforming of political economic and lawful systems of the state shall need the organ which shall guarantee the supremacy of the Constitution, shall provide for fundamentals of the state system, the constitutionality of all state and legal institutions. The update ideas and problems of realization of the constitutional control, as it was many years ago, shall remain in the sphere of fixed consideration of scientists, jurists, politicians of different states. For the last dozen years this topic has been one of the urgent topics for the states chosen the way of democratic reforming. A great number of scientific works have been written about the constitutional control, comparative and legal researchesá of experience of other states in this sphere has been carried out. Many questionsá concerning the constitutional have been discussed at the scientific forums and have become the issue of dicussion at different scientific and practical conferences on different levels. There have not yet been stopped the disputes aboutá the legal nature of the constitutional court about its place and role in the system of the organs of state power. In this connection I cannot but specify that the interest to the given issue in the equal degree with absence of the uniform simple opinion on all the discussed questions shall only confirm the complexity versatilety of this state and legal institution.

Each state has its own features and peculiarities in the formation and organization in the activities of the organs of the constitutional control. The Pridnestrovskaia Moldavskaia Respublika is a young democratic state that is why theá generalization of the experience and of the constitutional activities of other states shall for us be of both cognitive and scietific and applecable significance.

The constitutional control in the Pridnestrovskaia Moldavskaia Respublika has its own way of formation: from the idea of creation of the constitutional Chamber at the Supreme Court of the Pridnestrovskaia Moldavskaia Respublika to the formation of the independent organ of the constitutional justice. Taking into consideration the world experience of the constitutional and legal development our task has been to choose the most adequate modal of the constitutional control appropriate the realities of our state. In the most wide sense the constitutional control and legal security of the Constitution shall be carried out by all the organs of the state in the limits of their powers. Observing the principles of the division of powers the activity of the organs of each branch of state power shall be directed to the strengthening of sovereignty of the state, unity of the state power for the purpose of carrying out of the general for all the organs of the state goal which shall be the provision of realization and real protection of rights and freedoms of a person and a citizen proclaimed the supreme value of the society and state.

The constitutional justice being the specific form of the constitutional control shall relate presently to internationally standards of democracy. Approaching the high internationalá criteria of the development of legal democratic state system we have chosen the way of creation of the specialized organ of court constitutional control. The establishment of the given institution in the Pridnestrovskaia Moldavskaia Respublika as well as in other countries developing democratically has become natural.

In accordance with the Constitution of the Pridnestrovskaia Moldavskaia Respublika the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be the organ of the constitutional control in the Pridnestrovskaia Moldavskaia Respublika.

It shall be a new institution in the history of our Republic in realization of its state system. The creation of the Constitutional Court has been conditioned by the transition of our state to formation of a free civil society of a sovereign independent democratic and legal state in accordance with Article 1 of our Constitution.

The very creation of such an organ has given the Pridnestrovian state system the lawful framework in accordance with the world standards. There has been created the constitutional organ in the state system equal to the other supreme organs of the state system: these are - the President and the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika. The special place of the Constitutional Court in the system of organs of the state shall be determined by its competence, the character of its activity influencing the processes of legal creativity and legal application.

It shall be the institution of the state power for respecting the fundamental law of the country both on behalf the organs of state power and officials and on behalf the citizens.

The basic goals of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be the guarantee of the supremacy of the Constitution of the Pridnestrovskaia Moldavskaia Respublika as the fundamental law of the state on the entire territory of the Republic, the protection of the constitutional rights and freedoms of the citizens independently of their social status and political opinions, no admissibility of exceeding of the competence of any branch of the power. The Constitutional Court shall protect the fundamentals of the constitutional system of the Pridnestrovskaia Moldavskaia Respublika.

The created in our Republic organ of the constitutional control according to the principles of its formation and activity shall respond to the criteria of formation of the organ of the court constitutional control generally admitted in the world practice.

First, in the formation of the very organ there shall participate on the parity elements the three branches of the state power. Second, the candidates to the position of a Judge of the constitutional court shall conform to the highest professional requirements. Third, the activity of the Constitutional Court shall be based on the principles on the supremacy of the law, independence, collegiality, publicity, full and comprehensive consideration of cases, validity of the decisions adopted, controversity and equality of the parts.

Besides, the competence of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika alongside with the organs of the constitutional justice of other countries shall include the verification of constitutionality of the laws, legal enactments adopted by the legislative and executive organs of state power, by the organs of local self-government regarding the decision of disputes concerning the competence of the organs of different branches of the power. I consider it absolutely important since the Constitutional Court shall play the special role in the provision of the principle of division of powers. Considering the conflicts and disputes between the organs of different branches of the power it shall become the organ of compromise and reconciliation. In the given sense the Constitutional Court shall become the guarantor of the political peace and stability in the society and state, the keeper of the constitutional values, the guard of the constitutional system.

In any democratic legal state there have been unquestionably admittedá that all the occurred conflict situations between the organs of state power and government, officials and citizens shall exclusively legaly be decided. Solely, on the basis of the supremacy of the law there can be maintained the constitutional legality. The fact is that even the ancient thinkers have specifiedá that the just state system shall be the power capable to admit the law which shall at the same time restrict it.

The Constitutional Court of our state shall deal with the questions of constitutionality of international agreements. It shall be the Constitutional Court who shall make conclusions concerning the correspondence of the international agreements to the Constitution before their ratification and shall verify the correspondence of the national legislation to the international legal norms and international agreements which have come into force.

Being the sole organ of the constitutional jurisprudence of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall give general and obligatory interpretation of the Constitution and the constitutional laws. Thus, the official interpretation of the fundamental law of the state shall become the competence of the law but not the policy.

In my opinion, the special and exclusive place in the activity of the Constitutional Court shall occupy the protection of rights and freedoms of a person and a citizen. In the modern democratic state and society the constitutional justice has become the most efficient institution of the juridical protection of human rights. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall consider the complaints of the citizens on the infringement of rights and freedoms of a person and a citizen as a result of application of a law, statutory enactment. It has become the main mechanism capable to maintain the responsibility of the state under a person for the adopted by the state organs decisions not corresponding to the norms of the Constitution.

At present the existance, and what is more the deserved and efficient operating of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, makes it possible to determine the correctness and validity of the decision to establish the new legal institution of the Pridnestrovskaia Moldavskaia Respublika. Its activityá shall become the main indices of the developing legal strengthening of our society and the regulations of the Constitution have been tranforming into actually operating law.

Admitted for the last two years of the activity of the Constitutional Court decisions have got the wide public resonance in the Republic. Each separate considered case has become a considerable step in the strengthening of the constitutional legality, development and perfection of the creative legal process in accordance with the fundamental principles of the constitution, the fundamentals of the constitutional system. The activity of the Constitutional Court shall in the civilized way and on the basis of the supremacy of the law permit to remove the drawbacks of the legislationá and develop the legal system of the Pridnestrovskaia Moldavskaia Respublika on the basis of the international norms and standards. And the most important is that the citizens of the Pridnestrovskaia Moldavskaia Respublika have got additional guarantees in the protection of their constitutional rights and legal interests.

The creation of the Constitutional Court has become the next and I am confident the right step in the direction of the development of state system of our Republic and a new solid base in the sphere of the further state development. In the conclusion I would like to specify that due to the positive experience of the majority of states the establishment of the institution of the constitutional control in the state there shall increase the trust to the organs of the power and government shall stregthen the respect to the fundamental law, shall increase the guarantees of the constitutional values. The activity of the organs of the constitutional control shall reflect the processes of the democratization of the society, the state of the maintenance of the rights and basic freedoms of a person. In any civilized progressive society there shall be impossible the development of the democratic legal state system without efficiently operating constitutional control.

Therefore, the constitutional control and other important basic institutions of the legal state shall always attract special attention of politicians, scientists, jurists, world public opinion. There shall never disappear the actuality, requirement in the perfection and adaptation of the very institutions to the undergoing conditions of the development of the modern society and state. At the beginning of the XXIst century we are transferring to a new stage of the development of the international cooperation in deciding the questions of protection of legal rights and freedoms of citizens on the basis of the civilized commonwealth which has become one of the most important factors of the modern constitutionalism.

Smirnov I.N.,

Doctor of Economic Sciences,

áProfessor, Academician of MAI

President of the President of the Pridnestrovskaia Moldavskaia Respublika




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