In detail...

About the Influence of the Position of the Special Organ of the Constitutional Justice in the System of the Division of Powers Under the Conditions of their Simultaneous Foundation on the Nature and the Place in the Mechanism of Carrying out of the Public Power (on the example of the countries of the former USSR)

Adequate display in constitutions of public relationships, absence of a pressure in a public - state system which is designed by the constitution (that basically is impossible today, for the lack of corresponding views about the ideal country and a society theories of which can be realized that is why minimization of negative factors is possible) and first of all in the establishment of government which corresponds to the theory of a lawful country and to the purposes of the country is a unique opportunity for special body of the constitutional justice to take an appropriate place in the mechanism of a lawful country.

Unlike the long- going European democracies where comprehension of necessity and realization of a principle of the division of authorities and creation of institute of the constitutional justice took a significant time period, unexpected disintegration of the USSR and the will to democratic transformations of the former members demanded almost immediate not reformation but creation of an absolutely new government and practically by its own (unlike Germany or Japan after World War 2), without sufficient theories concerning such a transition and practical experience of transformations in fact as it was found out in later practice of democratic transformations within the period after World War 2, with its positive ending appeared as not enough or unacceptable in the former USSR (not including Baltic countries)

A number of political reforms of the late 80s and early 90s (first of all introduction of the institute of the president and acceptance of the doctrine of the parliament) with some traditions of political management (individual authority) have affected a choice of the state mode in these countries first of all in Russia that was always a leader in choosing a direction of the reforms. The majority of countries had half- presidential republic but Russia and some Caucasian and Central Asian states are examples of "super-presidential" republic or even monarchy (if to take into consideration a way of transfer of authority). The peculiarity of the state board in the majority of the former USSR countries (except for Baltic) are significant divergences between legally fixed and actual state of the affairs and discrepancy of classical schemes of functioning of the state mode and what exists in reality (both actually and legally) in the above mentioned countries. These factors have got significant value in introduction of the institute of the constitutional justice. A choice of that particular model and its features was affected by the practice and experience of ethnically related countries, experience of previous state construction (Estonia and the Scandinavian countries), geographical and ethnic unity (practically identical institutes of the constitutional justice in Tajikistan and Uzbekistan), ways of common European reforms of creation of the similar institute, imitation of reforms in Russia (problems with creation of the Constitutional Court in Ukraine), political tension as consequence of features of the state mode (Kazakhstan).

Basis for democratic transformations in overwhelming majority of the countries of this group (except for Turkmenistan) became introduction of a machinery of government which would function on essentially other basis. Opposed to the Soviet doctrine of sovereignty of councils the priority is given to a classical principle of construction and functioning of a lawful country, that is division of authorities. Simultaneously there was a creation of all necessary elements of a machinery of government for its effective functioning, including constitutional justice. The history of constitutionalism did not know such great transformations in specific conditions and for rather a small time period. Only decolonization of Africa in the 60s of the 20th century and creation on this continent of the independent states gave a similar example. Nevertheless, as it turned out, tendencies of the state construction in these countries (not in last place through features of legal culture which considerably differed from European) contained more negative moments than positive ones. Some of them revealed during reforms in the considered countries (deviations of sense of justice etc.) Reforms in the countries of the Eastern Europe differed both in content and structure. So newborn countries of CIS (not Baltic countries as they had a certain experience of independent state construction like the Western-European countries) set a unique example of such transformation the analysis of which has uncommon theoretically - applied value, in particular by way of optimization of installation of similar institute in just created machinery of government to avoid or correct the admitted miscalculations.

Comprehension of civilized values of a lawful country and aspiration of newborn countries to be organized according to its principles demanded creation of the mechanism of public authority of division of authorities corresponding to a principle according to functional criteria as analogue of the Western democracies. Division of authorities has found the display as a fundamental principle in all constitutions of the considered group of countries. More than that, ascertaining of this principle is even wider if the legislator tries to open its maintenance specifying both an interaction of authorities (Byelorussia, Azerbaijan, Kyrgyzstan, Kazakhstan, Moldova) and obstacles (Byelorussia, Kazakhstan).

Definition of the valid nature of a special body of the constitutional justice is capable to solve a problem of optimal accommodation of such a body in the system of division of authorities. As for today the uniform conceptual approach concerning the nature of this establishment does not exist the question of its site in the divided public authority is given on "payoff" to the national legislator, and he solves this problem according to the introduced method of the constitutional justice and the above-mentioned tendencies.

Now in the considered countries are considerably specified in borders of tendencies of the state construction model of the constitutional justice introduced into two of them: Estonia and Kazakhstan. The first had offered original however strange enough symbiosis from the American model (the constitutional control over the basic carries out the supreme court of the republic the supreme court); the French experience of functioning of the constitutional justice (the system of bodies operates in Estonia the State court and the chancellor of justice); practice of the ethnically related countries of Scandinavia (for example Sweden has a similar model of the constitutional justice), the certain previous experience of its own state construction (institute of the chancellor law), and models suggested by the some newborn countries (actually constitutional control in Estonia is done by the judicial board of the constitutional supervision that carries structure of the State court, approximately the same system functions in (!) Costa Rica where the constitutional control is carried out by the Constitutional court; nevertheless it is only the chamber of the Supreme court of this country). Even though Estonia has different models of the constitutional justice its main part the State court is simultaneously a body which carries out corresponding function in a machinery of government so in jure et in status the main body of the constitutional justice concerns to a judicial branch of authority. Structural completeness of this model gets into a connection with functioning of institute of the chancellor of justice, among which powers check of constitutionality of acts of legislative, executive authority and institutions of local government with the right of representation in the State court of recognition of such acts illegal. Existence of a similar body in extreme limitation of bodies which have the right initiations of the procedures of the constitutional supervision. Except for the Chancellor of justice it can be done only by the President (in the certain cases an article 107 of the Constitution), and courts (part 2, article 5, Laws on legal proceedings by way of the constitutional supervision) [1].

Estonia represents the rare case in territory of the former USSR when the nature of body of the constitutional justice corresponding to the validity coincides with a place in the system of division of authorities which is defined by the legislator of this country. The reason of it one model of the constitutional justice which operates in Estonia reminds the American model which as it was mentioned above differs in accommodation of body with similar functions in the system of division of authorities.

Entirely the opposite example is full uncertainty of the place nevertheless already special of body of the constitutional justice even at a legislative level shows Kazakhstan. Not in the last instance such condition is found out by imperfections of a principle of division of authorities and absolute artificiality of creation of this body which occurrence as is known is caused by political tension it is a result of specially designed machinery of government "under" the head of the country (even occurrence of it is connected to infringement of principles of creation of similar bodies the decree the head of the state, actually a lawful act), a consequence of existing political and state modes and systems of obstacles in this country.

The logic of occurrence of this body and the form of functioning allows making a conclusion on likeness of its nature with the Constitutional council of France or similar establishments which arose in its former colonies (Algeria, Mauritania, Congo). The structure of powers shows mixing in its nature consultative (part 2,3 of article 72 of the Constitution) compound in spite of the fact that the status at it entirely independent (article 1 of the Decree), other facts confirming it are some other powers, as for example interpretation of the Constitution, etc. (article 1,4,5 of the Constitution). Thus to define the nature and a place of this body in a machinery of government analyzing its status and powers practically hardly it is obviously possible. Only carrying out parallels with similar bodies despite of its certain powers allow to talk about it, as about consultative special body of the constitutional justice. As if to the Constitution or the current legislation it is necessary to note practical absence of standards which probably would define a place of this body and its nature. Only the article 1of the Decree shows independence of the Constitutional Council.

At the same time the analysis of powers allows to determine a real place of this body in system of obstacles. Part 2 and 3 article 72 of the Constitution specify that with the help of this body was significant raised "presidential" authority as these powers are certainly directed against legislature. And in addition the way of formation of this body (Chairman is appointed by the President his(hers) decision is final), as a group with power of interpretation of the Constitution allows to speak about it as the tool of influence of the head of the state on the Constitution.

Kazakhstan became the ancestor of the sad tendency of disproportionate strengthening of executive authority due to legislative that under conditions significant democracies results in the extremely sad consequences. Any obstacles in this case are out of the question. So tendencies to authoritarianism in newborn democracies and decorative effect of democratic establishments which for the first time were showed in the countries of Africa and Latin America [3] became common in the CIS.

Between these two "poles" (Estonia and Kazakhstan) there is the whole spectrum of functioning really or fictitiously special judicial bodies of the constitutional justice based according to the basic requirements of the European model of the constitutional justice to similar bodies functioning really or fictitiously.

Concerning definition of the nature of such bodies and their place in the mechanism of realization of the government being based on acts of the national legislation which institute similar bodies is considered possible to carry out their certain classification taking into account which gives convenience for studying and the analysis of their activity.

The first group consists of the countries where the legislator unequivocally carries special body of the constitutional justice to a judicial branch of authority. Judicial authority carries out the Constitutional Court of the Azerbaijan Republic... [4.] similarly given question without dependence from the corresponding validity of the nature of such bodies is solved in Armenia, Georgia, Russia, Uzbekistan.

Belonging of a similar body to a judicial branch of authority can logically be established due to its accommodation in sections which are devoted to courts or law. Courts of the Kirghiz republic are the Constitutional Court of the Kirghiz Republic... (section courts and Justice Constitutions of the Kirghiz republic) [5]. Approximately similar bodies are in the second group of the countries except for Kyrgyzstan, Byelorussia, Latvia and Tajikistan. Byelorussia has set an example of transformation of the status of special body of the constitutional justice in the main law from absolutely independent separate place and actually through accommodation of rules about the Constitutional court in system of bodies of the state control and supervision the separate branch of authority reference to a judicial branch of authority was created. Thus conceptual indecision of the period of creation, but nevertheless absolutely logic taking into account the certain all-European tendencies (experience of Bulgaria) and theoretical operating time concerning development of institute of the constitutional justice (discussions concerning a control branch of authority) have changed taking into account experience of Russia hardly successful and indicative [6].

More complex analytical work is necessary to carry out investigating the legislation of Lithuania, Moldova and Ukraine, concerning installation of special body of the constitutional justice in the mechanism of the divided authority. The constitutional Court is independent from any other public authority... (part 2 of article 134 of the Constitution of Republic Moldova). Thus, the Constitution recognizes only three branches of authority. What is more, the Constitution do not contain the information concerning accommodation of this body in the mechanism of realization of public authority [7]. Standards of the Constitutional Court of Ukraine are located in sections "Justice" and Supreme Court of Ukraine. Nevertheless, belonging of this establishment to a judicial branch of authority probably is only conditional in an appropriate way interpreting article 124 of the Constitution of Ukraine. The status of the Constitutional Court of Lithuania is hard to establish as the Constitution is silent about this and a unique place in the Law which hints and no more the name of article 1 the Constitutional Court judicial establishment [8]. Nevertheless, the judicial establishment is not a court but more likely a body which has its attributes. And again we dont know to what authorities it should belong.

Not having the direct relation to the researched aspect of a theme, nevertheless being a bright though partial display of an impressing conceptual mess concerning the nature and place of special body of the constitutional justice, the situation with introduction of the institute of the constitutional justice into subjects of the Russian Federation is of great interest. First of all it is necessary to specify the following: in the subjects of federation there is no unity in sights concerning a model of the constitutional justice. According to the supreme acts of subjects of the Russian Federation, among 15 bodies of the constitutional justice stipulated by them 12 are the constitutional courts, 2 bodies such as a committee of the constitutional supervision, 1 the supreme court of the general jurisdiction. At a level of oblasts and krays the same confusing situation exists, among 17 15 are possible to be characterized as special bodies of the constitutional justice, 2 have courts of the general jurisdiction [9]. Misunderstanding of corresponding essence of such bodies in the mechanism of a lawful state quite often results in a situation which has developed in Mordovia when the Constitutional court in this republic was created for the decision of a concrete affair then it was liquidated [10]. In this respect Mordovia has surpassed the experience of African "democracies". In general, the legislator as a rule places standards about similar bodies in sections of constitutions dealing with judicial authority or judicial system. It has given an occasion to approve by some researchers of constitutionalism that the constitutional and authorized courts of subjects of the Russian Federation are judicial bodies [11]. But it is not known what to do with those from the subjects where even at a legislative level between a corresponding section which establishes this institute there exists only a logic connection (Tyva), and it is quite often possible to find out only due to deep and corresponding work. The constitution of Republics of Saha (Yakutia) in general speaks about the Constitutional court, as the supreme state body, which according to a principle of division of authorities (sic!), (article 50) [12] functions independently. As we see the position of a legislator of the Saha Republic essentially and consistently contradicts any of the existing variants of the constitutional justice, together with traditional understanding of a principle of division of authorities. B.Ebzeev's diligence to reconcile corresponding to the reality artificially created nature of a special body of the constitutional justice [13] has found the display in the Constitution of the Republic of Komi, where the Constitutional court is the subject of direct realization of the government (article 8) [14].

Thus, it is hardly possible to define the nature corresponding to the reality and a place of special body of the constitutional justice through its declaring and accommodation in the system of distribution of authorities legislators of the above-mentioned groups of the countries. Therefore analyzing a real condition of functioning of special body of the constitutional justice in these countries, it is necessary to fix the moments which would seem to have no direct links with definition of the nature and a place of such a body. One of them is the way of formation of such bodies. It shows a place of special body of the constitutional justice corresponding to the reality in the mechanism of obstacles and counterbalance and taking it into account it begins possible to determine its nature corresponding to the reality. There is a certain connection between the form of the state board and the way of formation of this body.

As it has been shown above the conciliation procedure is the most comprehensible at formation of body of such a type. It is applied in Latvia, Lithuania, Uzbekistan, Tajikistan and Kyrgyzstan. In Latvia members of the Constitutional Court are appointed by SEIM, 3 by the offer of not less than 10 deputies of the SEIM; 2 by the Cabinet, 2 by plenum of the Supreme Court [15]. Thus all three branches of authority take part in formation of this body excepting the head of the state, that basically is harmoniously synchronized with the form of the state board in this country. In Kyrgyzstan, Uzbekistan and Tajikistan the similar body is formed only by two branches of authority executive and legislative, and the two latter countries set an example in giving places in the special body of the constitutional justice for national autonomies [16]. In general, the conciliation procedure is common for formation of the Constitutional court of the Russian Federation. Nevertheless taking into account that fact that members of this body are appointed by the Council of Federation under the offer of the President, and the first one is not an elective body but a formed one, and half of its members belongs to an executive branch of authority, there is a sense to talk about unilateral orientation of this body at executive branch of authority [17]. What is it if not real features of the state mode and system of balance of authorities in a way of formation of a special body of the constitutional justice? In Byelorussia, Armenia, Moldova, Ukraine and Georgia the structure of such a body is formed by branches of authority independently one from another, three equal amounts from all branches [18]. Hardly probable that such a way of formation is acknowledgement or consequence of a principle of division of authorities, nevertheless internal oppositions in this body are designed certainly. Armenia sets an example of disproportional giving places for legislative and executive branches of authorities accordingly five and four members of the Constitutional Court. Byelorussia gives an example of disproportionate strengthening of executive branches of authority. Chairman and five members of the Constitutional Court are appointed by the President and six by the Senate, the upper chamber of parliament. As we see Byelorussians rather originally understand parity between legislative and executive branches of authority. Byelorussia and in part Russia show as an "independent" body of the constitutional justice is possible to turn into the additional tool in hands of the head of the state for achievement his of purposes. Any distortions of democracy never make authority obvious. K.Schmidt's gloomy forecasts apparently start to come true.

Thus, depending on a way of formation of special body of the constitutional justice there is possible a) harmonious installation in a machinery of government of the certain form of the state board; b) disproportionate amplification of any branche of authority. A conciliation procedure of formation of such a body in which legislative and executive branches of authority take part is optimum though for a harmony of the process judicial authority is sometimes necessary too.

Besides, the process of foundation of the institute of the constitutional justice in the specified countries allows making other conclusions concerning simultaneous introduction of a machinery of government based on principles of democracy and a body of the constitutional justice.

First of all it is evolution from original forms to standard forms, the approach of the countries which set fashion in reforms (experience of Byelorussia) and evolution from standard to original forms as a consequence of the adaptation of the state mode to traditions of management, features of ruling elite, culture including legal, etc. (Kazakhstan). During the 90s it was possible to observe an evolution of the contents of representation about a place of a special body of the constitutional justice in a machinery of government, in particular concerning selection of powers which are the significant factor of influence. Ukraine is an example of such an evolution of sights which in general is consequence of conceptual mess and absence of precise sights at a direction of reforms. It is enough to compare laws of the constitutional justice in edition of 1992 and 1996 synchronously with the process of modification in the constitutional acts of that period (the Constitution of 1978 with changes, the Constitutional contract of 1995) to understand cautious indecision of the Ukrainian reformers and t legislator. To this it is necessary to add a process of creation of a special body of the constitutional justice. Arguments like there was no new constitution, and nothing to protect sound flimsy as there existed a similar and rare case positive experience of Russia. Constitution is not so much consolidated, internally consistent act (by the time of acceptance of the working Ukrainian Constitution the previous one had practically ceased to meet these requirements) but attitudes of the supreme order which such a body should protect.

Other tendency takes the beginning in practice of the postcolonial countries which introduced democratic establishments like European. Foggy comprehension of necessity of democratic transformations and attributiveness of reforms when a determinative factor of foundation of a machinery of government based on principles of democracy was not the necessity corresponding to the reality but, for example, a recognition by democratic community, retouching of processes which are only given out for reforms far from the requirements of organic constitutionalism and democracy. Consequence of this tendency is a decorative effect of the institute of the constitutional justice, fetishism of work of a special body of the constitutional justice, various deviations in its activity (polarization) and, as consequence, deviations in its nature impossibility to take its place in a machinery of government. Thus, even the normative display of the given categories is far from ideal nothing to say about searches of conceptual - optimum ways of installation of this establishment. Experiments are more likely conducted in the field of its adaptation to their own, freakish requirements far from democracy and a lawful state.

There is a sense to speak about experiments with optimum, from the point of view of the legislator, selection of powers (Russia; accordingly laws on the Constitutional Court of the Russian Federation of 1991 and 1994), with selection of model of the constitutional justice (Kazakhstan, permanent discussions in Kyrgyzstan), on questions of competence (the Constitutional court of Byelorussia before 1996 could define constitutionality of legal acts under its own initiative (?!) concerning deviations of the nature and a place of such a body if this fact may be added by its participation in the procedure of dissolution of the parliament).

Thus, the majority of the specified countries were not able to avoid annoying mistakes concerning a choice of a model of the constitutional justice and its qualitative installation in a machinery of government which in its turn will result (here and there it happen) in changes in functioning of this institute.

Finally, many questions put in the given research have a debatable character and the chosen direction demands significant additional and laborious researches. But in general the question is put and its qualitative decision will allow bringing a theory of a modern lawful state at a qualitatively new level. Extremeness of some approaches should not scare because cautious restraint in research of the bases of constitutionalism and a constitutional law bring these categories to the level of power apology, that is in any case unacceptable especially during the period of great transformations and changes on ways to democracy.

Slidenko I.D.,

Candidate of jurisprudence, Assistant Professor of the International Arts University, Ukraina

Notes:

1. ( ) // . 1992. 26. . 349; // . 1993. 24. . 435; // . 1993. 22. . 436.

2. // . 1995. 8 ; // . 1996. 9 .

3. Dynamiques et finalites africains des droits. P., 1980. . 399.

4. // . 1995. 5 .

5. // . 1993. 7. . 175; 1996. 5. . 63.

6. // . 1996. 27 . 1994 . .: . : ? // . 1996. 1. . 4950; . // . . 92.

7. // . 1994. 1.

8. // . 1992. 33. . 1014; // . 1993. 6. . 120; 36. . 751; 1996. 35. . 625.

9. : . ., 1997.

10. ( ) // . 1994. 18 .

11. . ., 1996. . 173.

12. . ., 1997.

. 304.

13. . 1995. 4. . 35.

14. // . 1994. 10 .

15. // , 1996. 14 . 103.

16. // . 1993. 1. . 4; 1994. 1. . 5; // . 1995.

22. . 223.

17. . ., 1996.

18. // . 1995. 21 ; // . 1995. . 668.




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