Textual and Lawful conflicts in the constitutions and the problems of their deciding †(on the example of the Pridnestrovskaia Moldavskaia Respublika and the Russian Federation)
Any constitution shall be the document both juridical and political. Establishing the fundamentals of the legal and state system, the constitution shall aspire them with political importance which improves its value. And aspiring the political significance and politized ground the constitution shall not lose in any of its parts its juridical character. Any regulation of the constitution shall stipulate directly the rights and duties thus guaranteeing the realization legal compulsion.
The text of the constitution shall always contain deep scientific wording and separate regulations shall contain official interpretation. It's well known that the right to the officical interpretation of the Constitution both in the Pridnestrovskaia Moldavskaia Respublika and in the Russian Federation shall belong to the Constitutional Court. The interpretation shall be necessary, in our opinion, for the following purposes: first, the procedure of reconsideration of both Constitutions and entry of amendments is complicated, second, the constitutional requirement of inadmissibility of contradiction with the fundamentals of the constitutional system to other regulations of the Constitution shall be of great importance, and, third, textual and legal conflicts appearing in the Constitutions shall have the constitutional deciding.
The aim of the given report is not to give the legal estimate to the institution of the official interpretation. Using the principle of comparative law study we try to expose the only purpose for the necessity of the official interpretation of the Constitution. In the given work we shall examine the nature of textual and legal conflicts, the reasons for their existance and the problems of their deciding and besides we shall analyse the role and the significance of the Constitutional Court in the maintenance of the protection of the Constitution and elimination of the regulations separately unconformed and contradicting each other.†††
The problem of the textual and legal conflicts regarding the Constitution of the Pridnestrovskaia Moldavskaia Respublika to a certain extern is laid by the very document. Thus,† Part Two Article 15 reads that "no other regulations of the current Constitution shall contradict the fundamentals of the constitutional system of the Pridnestrovskaia Moldavskaia Respublika". Shall it mean that the Constitution quite reasonably admits the innercontradictions except the contradictions of the regulations of the Constitution to the fundamentals of the constitutional system for the reason the Constitution itself does not state its own unconformity? And taking into consideration that the Constitution of the Pridnestrovskaia Moldavskaia Respublika has been adopted at the all-nation referendum† which in accordance with Article One of the Fundamental Law shall be "the supreme direct expression of the power of the people", can it be officially examined on the subject of discovering in its text the contradictions to the fundamentals of the constitutional system even if the given contradictions shall be proved by, for example, doctrine means? If no, then what practical significance shall Part Two Article 15 of the Constitution have?
Separate authors (for example, A.A.Belkin) suppose that at discovering in the Constitution the contradictions we shall obviously follow assumption (or fiction) that the Constitution adopted at the referendum shall not contain contradictions to the fundamentals of the constitutional system. And then Part Two Article 15 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and correspondingly Part Two Article 16 of the Constitution of the Russian Federation shall be of no practical significance. And the stipulated in them contradictions will have the opportunity to be decided solely in a "reserved" way by means of mechanisms stipulated in Articles 102, 103 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and Articles 135, 136 of the Constitution of the Russian Federation, i.e. at the reconsideration of the text of the Constitution or at separate regulations. But there exists the possibility that after the reconsideration by means of entry into the Constitution in the established order of the corresponding amendments, the contradictions shall not be eliminated or the new contradictions shall appear. Shall then the Constitutional Court have the right to consider the law about the entry of amendments into the Constitution on the subject of its conformity to the fundamentals of the Constitutional system?
The Constitutional Court of the Russian Federation in the resolution from October 31st, 1995 has directly specified that in accordance with Article 125 of the Constitution the Constitutional Court shall have no right to decide the cases on the conformity† to the fundamentals of the constitutional system of laws of the Russian Federation about the constitutional amendments considering them not " federal laws". Hence, in case the given laws shall relate in the Constitution to the Fedaral laws the Constitutional Court of the Russian Federation shall have the right to consider the questions on the subject of their conformity to the fundamentals of the Constitutional system.
The legal status of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is different. Thus, Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates the right for the Constitutional Court to decide the cases regarding the constitutionality of laws (including constitutional). Article 105 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates the possibility for the entry of changes into the Constitution by a law. Hence, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall not only possess the right but shall be obliged to consider the laws about the amendments on the subject of their conformity to the fundamentals of the Constitutional system.
The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika at consideration of the request of the President of the Pridnestrovskaia Moldavskaia Respublika about the interpretation of Article 6 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and† about determination of the status of the Procurator's Office in the system of the organs of state power and government has revealed that Articles 91, 92 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulating the legal status of the bodies of the Procurator's Office do not correspond to the fundamentals of the constitutional system. Thus, in accordance with Articles 91, 92 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the Procurator's Office of the Pridnestrovskaia Moldavskaia Respublika comprising the uniform centralized system shall not relate to the organs of power and government, shall carry out the functions of the executive and judicial organs of state power, shall be accountable to the legislative organ of state power and shall, at the same time, be independent. And in accordance with the legal position of the Constitutional Court the given articles shall never contradict Article 6 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulating the realization of the state power on the basis of the division into legislative, executive and judicial and the organs of the legislative, executive and judicial powers shall be independent in the limits of their powers.
Articles 91, 92 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika in the above-mentioned wording were adopted by the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika on June 30th, 2000 and registered by the Constitutional Law No. 310 - «»ń. Hence, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on the ground of Article 87 of the Constitution shall have the right to consider the question about the conformity of the above-mentioned constitutional law about the amendments into the Constitution of the Pridnestrovskaia Moldavskaia Respublika which means about its conformity to the fundamentals of the constitutional system, i.e. to the regulations of Section One of the Constitution.
The fundamentals of the constitutional system shall be the system of the principles and therefore to some extent Part One shall be named a constitution in the Constitution. And as the Constitution shall be considered the normative standard to which all other legislative enactments shall correspond, Part One of the Constitution shall be the norm to which all other regulations of the Constitution shall verify.
The partly declarativeness of Part Two Article 15 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and incompleteness of the corresponding construction regarding the procedure maintenance shall not disclaim the necessity of the doctrine coverage of the possible problems of the given kind, working out or,exactly speaking, adaptation to them of the current legal categorial staff.
Thus, we cannot but specify that Part Two Article 15 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and Part Two Article 16 of the Constitution of the Russian Federation lead the question about "innerconstitutional conformities" to no inadmissibility of conformity of the other regulations of the Constitution to the fundamentals of the constitutional system which means exclusively to correlations of Part One with the other parts of the Constitution. The given state, in our opinion, shall beforehand limit the number of problems emerged by Part Two Article 15 (and correspondingly Part Two Article 16) partly and shall leave outside the textual registration other moments of "innernonconstitutionality". But in order to scope the given separate moments in their completeness and system character there shall be necessary to use the two categories of the general character.
The first of these categories shall express the property of the Constitution, including any legal enactment and normative and legal system in general, certifying about the ideal readiness of the legal norms and documents both separately† and in total to such legal application at which its main goal shall solely be "application" of juridical norms to actual circumstances. The given legal property shall be specified as "legal proceedings adequency" when there exist no necessity for making any additionals† operations with legal texts and there shall be enough to read the texts and coorelate them with the regulated matter.
Of course, the given state shall be ideal and practically unattainable but the corresponding category shall be necessary for its opposition to the other category of the general character expressing the opposite state of normative and legal system " legal proceedings nonadequency". The given sought category in our opinion shall become "the textual and legal conflict" being a kind of the juridical conflict. We suppose in the given case there shall be possible to use the other kind of terms, for example, similar with conflict meaning is found at consideration of "juridical collision" (U.A.Tikhomirov) or "logics and structural defects of law" (N.A.Vlasenko). However, the term "conflict" for specifying the given phenomenon shall be, in our opinion, more preferable.
Firstly, the given term contains more doctrine unification in comparison with the others and it is organically connected with such recognized trend† of researches as juridical conflictology (V.N.Kudryavtsev). Secondly, from the terminalogical point of view the textual and legal conflict without additional explanations shall become a part of the general system of juridical conflicts and shall get its way out of the sphere of the legal text into the sphere of social and legal conflicts. Thirdly, the term "conflict" differently from, for example, the term "collision"† shall not be related under the pretext of the traditional word using to separate "conflict situations" (for example, collisions of legal norms).
It shall be more reasonable to understand† textual and legal conflicts as a group of juridical conflicts appearing at examination (textual comment) of legal texts, order of their publication or as a result of legal proceedings, appear as a kind of conflicts of separate legal texts or their totality but† not concrete subjects of the law even the action of the later have become the reason for appearing of the conflicts and shall be decided in the limits of lawful proceedings but not legal making.
The later shall be of great significance as in our opinion the juridical conflicts, in the broad sense, shall not obligatory be connected with the dispute on law but shall be the conflicts regarding the formation of the law. The juridical conflicts can be caused† not only by the legal text but by reasonable refusal from the subordination to legal norms (infringements of norms). And the given differencies are important for the restriction and systematization both of the textual and legal conflicts and the means of their deciding.
†The textual and legal conflicts can appear as a result of no competence of legal enactments, collision of norms, blanks, subject and status disbalance, uncertainty in norms contents.
The absence of the competence of an enactment is connected with the rules of the issue of the enactment (for example, its issue by an unsufficient subject, with the infringement of competence, the procedure of the issue, properties of the enactment, etc.).
†The collision of norms appears at the regulation of one and the same question by different convergent norms concerning which there have been observed no requirements of a competent body.
The blank in the law supposes the absence in the current legislation of a rule by means of which the legislator shall regulate a definite question but for different reasons has not regulated it.
Subject and status disbalance (disbalance of rights, duties, prohibitions and restrictions) is characterized by giving unproper authorities, unproper requirements establishing unproper prohibitions and restrictions, etc.
The uncertainty of the contents of a norm shall exist in case when the appropriate rule admits different variants of its application.
The given list of textual and legal conflicts is not exhausted and includes the mostly widespread in the legal proceedings practice and juridical publications ideas on the given problem and the above-mentioned definitions of separate textual and legal conflicts can be discussed. However, on the whole they, in our opinion, demonstrate not only (the contradiction) in coorelation of juridical norms but state the given circumstance in other forms which influences the variety of the ways of deciding of textual and legal conflicts both by means of legal proceedings and procedure actions.
The deciding of textual and legal conflicts is possible as a result of "no application" of conflict enactments and this, in our opinion, is possible only under the condition when the receiver of the enactment refuses its application under his responsibility. However, we shall take into consideration, that any enactment including conflict enactment shall be performed and only then shall be disputed in the order established by the legislation.
The deciding of textual and legal conflicts shall relate to the "annulment of the enactment" i.e. to the cancellation of the enactment,admittance its invalidity, etc. The given procedure shall be mostly characteristic for the cases of finding enactments with no competence preceded by the definite procedural actions such as, for example the protest of the procurator, Appealing Court and others.
The process of legal proceeding shall relate to operations for deciding textual and legal conflicts. These are operations which give the appropriate statutory regulations legal proceedings adequecy with no action to the wording of the enactments. These are the analogy of a law, the interpretation of juridical norms and others.
The given way of deciding of textual and legal conflicts shall be applicable for the Constitution. However, in the very case it shall be limited. It is caused first of all by the supremacy of the Constitution in the system of the legislation of the country, the peculiarities in its coming into force and entry into the Constitution of legal regulations corresponding to international and legal documents.
In the Constitution as in any other legal document at the analysis of textual and legal conflicts there can appear a number of problems. These problems are of two kinds: the correspondence of the Constitution to internationally admitted standards, on the one hand, and, the capability of the Constitution to maintain the optimal regime of the legal regulation of the country, on the other hand. As for the separate textual and legal conflicts the most actual among them in the constitutional field are the subject and status disbalance, blanks and uncertainty in the contents of norms.
The example of subject and status disbalance can be the following situation. Thus, Article 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika has established that the restriction of rights and freedoms of a person and a citizen shall be admissible in the cases stipulated by the law, for the interests of state security, public order, protection of morality, health of the population, rights and freedoms of other persons. Unlike the later, the European Convention on Human Rights and Basic Freedoms from November 4th, 1950 specifies the restrictions of rights and freedoms, firstly, in case of a war or state of emergency, and, secondly, relating separate rights and freedoms but not all as it has been stipulated in Article 18 of the Constitution. Taking into account that according to Article 10 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the universally admitted principles and norms of international law including the international agreements of the Pridnestrovskaia Moldavskaia Respublika shall be the basis of the relations with other states and the intergral element of the legal system we have to admit the presence in Article 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika of the subject and status disbalance even if the given constitutional norm appears quite rational.
Besides, it is necessary to note that Article 54 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika also stipulates the restrictions of constitutional rights and freedoms of a person and a citizen but under the conditions of military state of emergency and economical state of emergency and solely regarding separate rights which corresponds to universally admitted principles and norms of international law. Hence, there appears the situation when Article 54 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika does not contain subject and status disbalance, however, Articles 54 and 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika come into contradiction with each other and therefore the textual and legal conflict appears.
The Russian practice gives the possibility to specify such textual and legal conflict of the Constitution as the blank. Thus, in Part Two Article 137 of the Constitution of the Russian Federation there has been stipulated that in case of change of the name of a Republic, territory, region, city of the Federal significance, autonomous region or autonomous district the new name of the subject of the Russian Federation shall be included into Article 65 of the Constitution. In the given norm there has been specified nothing about the subject of entry, the order of entry which means that there appears the blank in the constitutional text as the given questions shall never be regulated in any other legislative document.
The filling† of blanks shall be made by application of analogy. In the given case there could be used the analogy Part One Article 137 of the Constitution as at the change of the composition of the Russian Federation the name of the subject of the Federation shall be obligatory present. And this in its tern shall acquire the issue of the enactment equal by the status to that which shall fix the change of the composition of the Federation, i.e. the Constitutional Law. However, the Constitutional Court of the Russian Federation in the Resolution from November 28th, 1995 using its powers for interpretation of the Constitution has admitted that the entry of a new name of the subject of the Federation into the constitutional text shall be made on the ground of the order of the President. In our opinion, it's impossible to agree with the above-mentioned as in Part Two Article 137 of the Constitution there exist no uncertainty of the contents of norms for the reason of the absence of the elements of the norms which can be subjected to interpretation. The logics of the situation shows hat in the given case there shall be filled the blank of the Constitutional regulation and hence there shall be applied the juridical means correspoonding to it.
In conclusion, we should state that the interpretation of the constitutional norms at the complete absence of uniformed representations about the criteria of interpretation (V.A.Tumanov), becomes mostly intensive applied means of deciding textual and legal conflicts. Obviuosly, the very absence of the corresponding criteria in total with the status of the Constitutional Court being the sole and the highest instance shall stimulate the enlargement of logical limits of interpretation leaving behind other ways of deciding textual and legal conflicts.
Candidate of Jurisprudence,
Chairman of the Constitutional Court of the †Pridnestrovskaia Moldavskaia Respublika
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