In detail...

The Significance, Evolution and Role Functions of the Basic Legal Ideas of the Constitutional Space

Society is an alive organism which characteristic feature is its development, modification of  attributes describing it, struggle for self-preservation. Any society, as well as at any alive organism including a human one, has stages of its development similar to those  any person has:  birth, childhood, adolescence,  youth,  maturity,  old age, decrepitude, and death. Different societies pass through these stages with  different speed dependent on circumstances. On each of these stages society has  behavior characteristic for such a stage of development. Compulsion of an old person to behave like an adolescent, compulsion of a child to act in a way acceptable  in youth or in a maturity should be considered as artificial intrusion into a natural course of the process, pursuing the purpose of its either acceleration or  braking for the sake of achievement of some benefit for an interfering person. The estimation of the incentive motives of those intended to carry out an experiment in the field of social relations is not so important as the degree these motives are close and clear to people making up an object of the given experiment. Analyzing motives it is important to define as far  they coincide with mentality, outlook, historical experience of these people as far  the members of the given society are ready to self-restriction and self-sacrifice, to submission to the will of “experimentators” from sociopolitical sciences.

Aspiration of the societies considering themselves more successful and progressive to intervene into internal life of other societies is a phenomenon widespread enough. The history of mankind abounds examples the brightest of which were the acts of Catholic church in the Middle Ages, Osman intrusion to the Balkans, expansion of colonial powers (Great Britain, Holland, France, etc.), work of Comintern on export of revolution from the USSR to other countries, activity of national socialists of Germany on creation of the third Reich. The history of mankind teaches that all these experiments sooner or later but fail. And each of the failures  hurt  people participating in experiment from both sides. The human losses caused by attempts of some societies to dictate their will to other societies always eclipsed that reasonable thing for the sake of which the experiment was conducted. Victims  the society has been compelled to make undergone the experiment frequently made up such a quantity which is typical to process of a genocide of the nation.

The object of the research undertaken by the author is the evolution of role functions of some institutes of a constitutional law, their historical origin and evolution in a modern society. The reason for a choice of the theme  became consideration by the Constitutional Court of the PMR of  case ¹ 02-Ï/ÎÇ about interpretation of article of the Constitution of the PMR. The purpose of the work will consist in aspiration to understand the nature of some legal ideas got in our society  special urgency in connection with active realization of the state constructions and the judicial - legal reform conducted  by legislature without expression of a precise position on the given question. Some knowledge used in the work and the methodical base are determined  by sciences   direct relation to the above-named object  :  history of the state and law, the theory of the state and law, a constitutional law, political science, philosophy.

Constitution of the PMR has incorporated a number of provisions which were produced by  legal science during millennia of the development of  human society,  approved by practice in the various states and  reputed progressive, adequate to the ideals of the civilized space Prednestrovian people belong to.

It is necessary to note that both the first (1991.) and the second (1995) Constitution of the PMR  have been prepared within short terms by practical lawyers in conditions of disorder in the former socialist society and the Soviet country, at incessant complex pressure on  the PMR  on the part of the state structures of the Republic of Moldova. These circumstances in a combination with psychologically understandable and sincere aspiration of co-authors of the main law of cc to emphasize legal character of our country, have played a certain role. Comprehension of some transplanted from the outside legal ideas was insufficiently full, had no  deep scientific study in the view of the local conditions and local mentality. Therefore in the constitutional field there were problems and collisions which  interfere with a normal course of social development today.

The founder of the regular theory of dialectics George Wilhelm Fridrih Gegel wrote: «... We really saw how  the political system was created on the basis of abstract ideas, but  so-called liberals creating a political system on the basis of abstract principles everywhere - in France, in Spain, Naples, Portugal, Piedmont, Ireland, etc. -  terminated with bankruptcy. The political system can be only a result of all previous development, nobody stands outside of his time».

The French philosopher of law and history Charles Lui Monteskje, with whose name the theory of division of authorities is closely connected, warned supporters of the prompt unification of political institutes and  social processes taking place in different conditions: «Each people have their own state system; English  state system is the state system of Englishmen and if we wanted to give it to Prussians it would be as absurd as the decision to give  Prussian state to Turks. Each state system is only a product, a demonstration of the spirit of the given people and a stage of the development their spirit».

But nevertheless the legal ideas dominating in western civilization on which democratic bases of a society are based were perceived  in Transdniestrian Republic. They became the integral components of Transdniestrian constitutionalism, basic elements of our legal system, trying to combine both features of Romanic -German and Anglo-Saxon legal systems. History knows  similar symbioses caused by changes of political and economic influence in various areas of our planet (Southern Africa, Ceylon, Egypt, Singapore, etc.). Time will show if this combination is successful.

The basic legal idea (further - BLI) is one of  the philosophical-legal cores  combination of which in a certain order and with a certain degree of rigidity (or flexibility) forms that state-legal skeleton to which  the legal fabric of  legislation is stuck later. BLI similarly to a genetic code of animals and plants predetermines the further development of the law, allows to predict in general law-making activity of subjects of the law of the legislative initiative.

Poet A.Voznesensky wrote: « If stars appear it means somebody needs it «. With reference to BLI one may say that appearance of each of them is not casual and is caused by urgent necessity of social development. Every BLI has its own applicability, it is generated, distributed, recognized and realized not due to respect for a pure science but to play its own role. The role of BLI  is  that socially significant result which is conditioned by its correct application. The result is achieved through performance of  certain functions which are inherent to the given BLI. Thus, the role function here is understood as a combination of the purposes, means and  methods used while realizing a legal idea having a basic character for social development.

Having approved the text of the Constitution during the referendum taken place December 24,1995, Transdniestrian society  undertook realization oà some BLI. The most actual among them were:

Principle of division of authorities (article 6);

Local self-management (article 7, 79);

The right of everyone on employment ( economic activity) (article 36);

Duty of the state of full, unconditional and immediate protection

The rights and freedoms of the person and the citizen (article 53);

Permanent powers of judges (article 83);

Principle of competitiveness in justice (article 85).

Behind each of the listed positions there is a whole complex of the world outlook and legal questions, intensive lawmaking and measures of an organizational character. Each of them demands both reckoned, verified and duly actions of bodies of the government and essential reconsideration by citizens of our country of their own role in the corresponding social processes, having  creation of a civil society as a ultimate goal. Some of these ÎÏÈ are useful to consider  in detail.

The theory of division of the authorities, stated by great ancient Greek philosopher Stagirit Aristotel and reanimated in XVII century by English philosopher John Lock, in its final variant is formulated in the middle of XVIII century by Charles Lui Monteskje. In general this theory asserts that the government is not a single whole but a set of various power functions (legislative, executive, judicial) carried out by state bodies independent from each other. I emphasize that it is a set of functions of independent bodies carrying them out but not a of set of bodies in a strict order placed on three branches of one "tree". Thus,  a prevailing role function of the named theory of Montesquieu was delimitation of tasks and powers, exception of duplication and interferention of the state institutes. Each of them  should be given  a field of action and responsibility. It becomes  clearer if to recollect that the idea of division of authorities had got a character of a doctrine and began to be realized within the period of  class struggle of bourgeoisie  against absolute monarchy. The most progressive class of that time considered division of authorities as a tool of restriction of absolute power of one person, a way of protection of  life and  property. The first parliaments in the countries of Europe which received a legislative - representative part of the government became a counterbalance to monarchs. Its other part, in hope for an opportunity of search of validity, was entrusted to courts by a bourgeois society. Such a compromise distribution of functions  is quite reasonable even today. However,  due to the  course of time law relationships varied. There emerged new phenomena, needs and alongside with them -  new state institutes necessary to carry out  new functions not designated by Montesquieus.

So,  leader of  movement for freedom in Latin America Simon Bolivar, having developed in 1826ã « the ideal sample « of the Constitution of Bolivia,  singled out a special « Selective authority « and made a three-chamber legislative corps. It is typical that with a cancellation of this Constitution in the result of  revolution  an extremely long period of political instability began in the country. But even today  the selective authority is stipulated by constitutions of Columbia, Nicaragua and some other countries  as independent  public authority alongside with a classical triad.

In France and some other countries  the constitutional authority is stipulated in the Constitution and it does not interfere with realization of the theory of Montesquieu  but only develops it.

One of the theories in a science of a constitutional law provides existence of independent control authority alongside with legislative, executive and judicial authorities. In the majority of the countries it is submitted by the supreme bodies of the state of a special sort (the Constitutional courts - in Germany, Italy, Romania, Bulgaria; accounting chambers,  state inspectors, superintendents). They are detached from other branches of authority and occupy an independent place in comparison with departmental administrative control. Bodies of control authority are engaged in investigation, examination or studying  of affairs and have no right to interfere with operative and economic activities of establishments and  enterprises. They report on results of examination to other bodies of the state which make corresponding decisions. The same principle is incorporated in the text of the law « On Office of Public Prosecutor PMR « (1992ã.) And in the constitutional law « About Office of Public Prosecutor of t   « accepted on June 4, 2003  which promulgation by the president, unfortunately, was refused.

In conditions when  corruption  does not demand proofs any more a number of  Russian jurists persistently recommend a careful monitoring of actions of authorities as a basis for struggle against it. World practice of development of the monitoring system of the machinery of state goes on the path of singling out of an independent branch of the government - control authorities. V.E.Chirkin names this process "to gemmate" a new branch of the authority having a character of search for forms of  embodiment of this BLI. He also emphases that  is not singling out of the detached control bodies within the framework of executive and legislative branches of the authority but formation of an independent branch of the authority equal  to three others.

Insisting on necessity of independent control authority adherents of realization of a certain BLI speak not only about  necessity of struggle against corruption but proceed from the constitutional norms. In particular it is affirmed that the sovereignty of people and democratic character of the state (article 1 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika ), a principle of publicity in conditions of absence of  real control turn into declarations.

Self-control and  interdepartmental control according to  general theory of  control cannot provide objectivity of the information given to a society about work of a machinery of the government. Reports of heads of different structures on their activity quite often are frank self-advertisement. The interdepartmental  control is focused on submission of employees - inspectors not to laws but to the boss. Only independent control (or supervising) body submitting to the Constitutions and law can carry out a fair investigations of any offences without dependence on a political conjuncture, pursue offenders irrespectively of a post, past merits and belonging to a party. In this connection singling out of a special  control branch of authority is  natural in division of labour typical for present day between bodies of the state each of which realizes rather narrow function in the state system.

Today the independent control authority in the USA is carried out in the form of independent public prosecutors,  some authors offer to use it in Russia too. In a number of  countries this authority is submitted by persons authorized to observe  human rights. A year ago the bill on this body of the government  appeared  in the Pridnestrovskaia Moldavskaia Respublika too, but was regarded without any special interest by legislators. In this connection it was never placed for consideration by plenary sessions of the Supreme Soviet.

S.A.Denisov sees an opportunity of formation of an independent control authority in Russia  in two variants: 1) on the basis of Office of Public Prosecutor; 2) by creation of a completely new body - the Main Supervisory Commission possessing independence from other branches of authority. They both  can be an object of consideration  in our conditions.

The tendency of strengthening of the executive authority is a characteristic phenomenon of XX century especially revealed in the USA after « Great Depression « while realizing " the New course « of Franklin Delano Roosevelt. As a result the constitutional principle « divisions of authorities « by redistribution of powers was transformed into the mechanism of « obstacles and counterbalance «which means increasing of interdependence and interaction of branches of authority. It essentially differs from the initial edition of the idea formulated by Montesquieu. The similar direction of transformations is observed and in our society. In conditions of  counteraction between Transdniestrian Republic and Moldova  repeatedly  denying  a common with us  state, the given process is forced but justified.

The question which way of transformation of the theory of division of authorities in t will lead to  increase of a level of efficiency of the state remains urgent. There are three possible ways:

1. Strict division of absolutely all state institutes between three

 branches of authority;

2. Consecutive maintenance of independence of each of the branches of authority from

interference by the others into the questions related to its competence;

3. Constitutionizing of new branches of authority in view of developing realities and

 international experience of evolution of the theory of division of authorities.

The first among the listed ways has, in my opinion, a dogmatic character. It  takes into account not all problems our society faces, does not  fully correspond to the provision fixed in part 2 article 1 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika concerning regulations on people's sovereignty and unity of a source of authority in the face of people of the Pridnestrovskaia Moldavskaia Respublika. Besides persistent following to a "mechanical" method of realization of a principle of division of the state bodies into three groups  whose  powers occur from the same source is fraught with negative consequences. Such a reform is capable to break the settled public balance, to destabilize the situation in the country, to weaken the control and supervision of laws on the part of  the society.

The second way, with its obvious similarity with BLI of Montesquieu, is a little bit out from the general way of evolutionary development. It can have only temporary character as it will not allow to resolve operatively problems arising before the state because of the complexities of similar themes which made the USA  introduce the mechanism of « obstacles and counterbalance».

The third way is  more perspective as on the one hand it consists in a combination of all  existing power functions preserving their independence from each other, but on the other hand  it allows to add a classical initial triad of  with  new branches of authorities. Their occurrence is quite natural on an alive tree of the state organism which is proved to be true by the experience, let say, France being the country which gave birth to both constitutionalism and the theory of division of authorities. But  later it afforded  their interpretation without  withdrawal of their  essence -  mutual independence of the bodies carrying out a set of the state functions.

A rule of not replacement of judges was established for the first time by « Act on organization « of 1701, added to the Bill on Rights of 1689 - a basis of the English constitutionalism. Purpose of this BLI  at an initial stage  was a restriction of the royal arbitrariness. It was established that replacement of the judge can take place precisely under the decision of both chambers of the parliament. The reason of the innovation was the aspiration to provide independence for judges from the head of the state guided by a principle of expediency, instead of  a principle of legality. In historical conditions when the problem of corruption, certainly, existed but it was not estimated as seriously as at present, permanent stay of the judge on the place was perceived as  blessing for a society relieved of absolute royal authority. Present conditions of the political system  differ significantly.

First of all it would be desirable to note the state of public opinion on quality of performance  of the functions by irremovable judges. In 2001 investigator P.A. Skoblikov  conducted an opinion poll on the theme: what way of collecting of legal debts from the person avoiding to make payments is most effective? Only less than a quarter of the respondents  named this way as  court; more than 40,5 %  supported the  apply to a criminal "roof"; 30,8 %. - to "roof" on the part of employees of law enforcement bodies (at an additional expense); 27 % -  to criminal "authority". The public opinion on this question in Transdniestrian Republic differs a little  from Russian, as a witness to that is daily practice of public prosecutor's supervision, regular reception of citizens on the questions arising at them at attempts in the judicial order to achieve  protection of their broken rights. People complain of an extreme sluggishness of courts and their bias very often.

It is not necessary to reject  those circumstances that for a long time already there is no monarchy and its absolute authority. The President is elected by people to whom  all completeness of the sovereignty belongs. The President is determined article 70 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika  as the guarantor of the Constitution and laws. The right of formation of bodies of judicial authority is also given to him; he functions as the guarantor of its independence and maintenance of the coordinated functioning and interaction of all bodies of the government.

With such a complex of competences of the President concerning judicial authority and an existing negative estimation by a society of quality of work of local parts of judicial system the principle of irremovability of judges becomes a handicap for realization by citizens of their right on judicial protection and requires reconsideration. According to the Soviet procedural law it was transformed into a principle of independence of judges and submission of them only to the law. Perhaps it is necessary to consider an opportunity of a similar treatment in present conditions.

Besides,  a science of a constitutional law knows another, not less popular elective principle of collective nature and the accountability of all authorities. Taking into account the fact that courts make up one of the branches of authority, it would be quite logical to use this principle in this field. Today the majority of judges is not elected  but appointed, justice in a local level is performed, mainly, not jointly but individually. The accountability of judges (within the framework of control activity of a legislative branch of authority) is rather conditional and concerns only the heads of supreme judicial bodies. It is necessary to ascertain, that  BLI of electivity, collective nature and the accountability of all authorities  is not used any more when speaking of judicial authority In a combination with corruption of a society, a steady aspiration to limit powers of public prosecutor's supervision of execution in courts of the Constitution and laws the given tendency should cause anxieties because of real protection by courts of constitutional laws of citizens and legitimate interests of a society.

The principle of competitivenessis, one of the most ancient in justice, is known since the times  ancient Babilon tsar Hammurapi and law process of ancient Rome. Methods of competition before court were rather various, to decline it to one of sides one would apply a test of a lot and some other methods. The great value was given to observance of special rituals. A judicial duel when  the sides concerned were replaced by professional fighters - "champions" that was provided by " Barbarous truths « of German peoples were wide spread.

But all these forms of competition could have no relation to revealing of an objective truth. The court in these cases  in a greater degree was a sports referee rather than a body of justice. Undoubtedly that competitiveness in litigation is the most necessary element for search and statement of a fair decision. However, there is a serious danger of a skew when the participants of a process  forget the main thing for the sake of which they should compete. The main thing should be exception of miscarriages of justice and protection of the restrained rights of the dissatisfied party. That follows from the sense of article 16 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

It is a common fact that all are equal before the law. However this  popular formula of a constitutional law at an inequality of material opportunities of participants of litigations turns very quickly into  a declarative threat  which it is very difficult to believe in by citizens. According to the results of the polls carried out by P.A.Skoblikov 42 % of citizens do not address for the help to the legal adviser or court because  « it is necessary to have much money to pay a skilled layer «.

With exception of  mentioning of court in the text of article 14 of Criminal Code of the Pridnestrovskaia Moldavskaia Respublika, made for giving a greater value to a principle of competitiveness courts  practically ceased to carry out a socially significant function of protection of citizens from criminals. Today, unfortunately, they  are perceived by the population as the tool of protection of criminals from possible punishment on the part of a society and the state. It cannot promote belief of people in the idea of a lawful state.

Thus, more detail study of norms of a procedural law in order to make courts  protect  victim, exposure guilty, maintain true application of the law, and punish everyone committed a crime is necessary.

The state is necessary for people, first of all, for protection of their rights and freedom. All other functions of the state listed in article 56 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika  are derived from  this role.

In various times the diverse state institutes corresponding to inquiries and opportunities of a society were used for this purpose. Among them the history of the state and law remembers tribunat of Ancient Rome, chamber of censors in China, omboodsmen offered for a civilization by  Swedish king Charles XII,  Russian Office of Public Prosecutor borrowed by Peter I from French state system, bodies of Office of Public Prosecutor of the socialist states. All of them had theie own functional role intended mainly for creation of a stabilizing balance in societies of that time.

In  modern literature necessity to add  tools of control to a classical imperous triad is marked.  The Office of Public Prosecutor  of Russia is admitted as the institute most suitable for it. Quite probably that in Transdniestrian  conditions rather similar to Russian in the directions of development of the legislation, to developed traditions and mentality of the population such a variant will be comprehensible. To observe  requirements article 6 of the Constitution it will be necessary to constitute direct submission of bodies of Office of Public Prosecutor to the President, as  the head of the state, having stipulated inadmissibility of their inclusion in the structure of executive authority.

If such a variant will be  considered not comprehensible politically it is obviously necessary to force acceptance of the law regulating activity of a person responsible for observance of human rights (omboodsman), with transfer to this new body of some  functions covered nowadays by the concept « the general supervision « by Offices of Public Prosecutor. Public need of  for the state protection of laws and the rights of citizens remains in any case. The  greater extent it will be provided, the  more stable and  comfortable a state will be for ordinary citizens.  The above-stated allows, in my opinion, to come to  the following:

1. Being  an act of display of people's sovereignty and  a supreme form of people’ rule the Constitution of the Pridnestrovskaia Moldavskaia Respublika  demands alongside with Constitutions of other countries general recognition, respect and the most advanced level of protection of absolutely all provisions contained in it.

2. Synthesizing a complex of the basic ideas reflecting the level of public outlook the Constitution of the Pridnestrovskaia Moldavskaia Respublika  can be considered  as a  document reflecting the national idea of the Pridnestrovian  people or a ground for its subsequent formulation.

3. Principal organs to protect the constitutional stability, spirit and the letter of the Constitution are  the President - the guarantor of observance of the Constitution and laws and the Constitutional Court - a body of the constitutional control.

An auxiliary role in performance of this function by them is played by legislature, all elements of the judicial system, Office of Public Prosecutor, bodies of local self-management, public associations, citizens forming a nation which is  a unique source of authority.

4. Proceeding from the materialistic attitude to the reality it is necessary to recognize that constantly varying vital realities determine the changeable attitude of a society to basic legal ideas and norms of the Constitution, hence, they are the categories of a temporal character inevitably subject to transformations.

5. Taking into account plurality of the factors influencing changeability of public consciousness all participants of the process of amendment, addition and interpretation of the Constitution  should show in it a special degree of suspension, care, consideration of the international experience and local features.

6. Despite their fundamental importance legal ideas and constitutional norms cannot remain  constant,they are inevitably transformed with the account of economic, social and political processes. The duly account of these processes and necessity of  corresponding amendments in the constitutional norms is the main condition for successful formation of respect to the Constitution in a society which is one of the basic ways of formation of appropriate sense of justice and the most civil society.

7. A natural course of social development and the analysis of the contents of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, degrees of completeness and interrelation of the constitutional norms predetermine the necessity to start its reconstruction with the purpose of elimination of available collisions and blanks, maintenance of the conditions required for effective performance of role functions of basic legal ideas.

Stepanov S.M.,

Deputy Procurator of the Pridnestrovskaia Moldavskaia Respublika

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