The constitutionalism and constitutional justice

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THE CONSTITUTIONALISM AND CONSTITUTIONAL JUSTICE

Considering the question on constitutionalism and the constitutional justice, first of all it is necessary to start with the following: in accordance with the tradition of the European legal culture ascending by times of antiquity, in Western Europe, first of all in England and in Northern America, still in ХVII-ХVIII centuries the idea of a priority of certain fundamental legal laws which in the beginning yet did not refer to as the constitution in the modern sense of this concept was developed. A theoretical source of this idea is the classical legal idea of representation on universal principles and the axioms of the law possessing the supreme validity in relation to laws, established by the government. The special merit of the legal idea is that due to it representations on human rights which he or she possesses by virtue of the birth but not by virtue of various laws were established in the European. As in a society the relations of production based on a formal equality of their subjects and economic compulsion to work affirmed, as democracy as an adequate political form of these economic relations was established, the constitutionalism was more and more shown as the theory and practice of restriction of public political authority by the law. The constitutionalism basing on representations about the natural right, human rights, means, first of all, a priority of the law in relation to the most authoritative legislative establishments, and from this point of view presence of the hand-written constitution as the main law, does not serve as a necessary condition for restriction of authority by the law as the priority of the constitution in connection with relation to all other imperious establishments follows not from that fact, that it is proclaimed by the main law, but from those reasons, that it possesses the supreme validity and is a pure expression of the law, it "constitutes" the legal form of the organization and functioning of authority in relations with individuals.

The idea of constitutionalism has established fundamental legal principles; axioms of the law b the court can be guided by, making a decision contra legem. First such a precedent was in 1610. Judge sir Edward Соkе, referring to principles of a general law, has nullified the law accepted by the British parliament. In the case of doctor Thomas Bonham, sentenced by medical chamber (body of a shop self-management) to payment of the penalty a half of which, under the law, should come at the disposal of chairman of the chamber, judge Coke decided, that the corresponding law contradicts a principle of a general law according to which "nobody can be the judge in his own business". As the chairman and the judges of the chamber are directly interested in collecting of the penalty, in each similar case they act not only as judges but also as a party, hence, according to a general law, they cannot be judges. In his summary judge Coke, in particular, declared: "From our books it follows, that in many affairs the general law forces to amend acts of parliament, and sometimes it is necessary to recognize them completely void. For, if the law contradicts the law and reason the general law is in force and the act is nullified".

Thus, it is possible to say, that the precedent created by judge Coke, concerns to a legal direction of early constitutionalism which continuation is the American model of the constitutional jurisdiction for which, in particular, interpretation by the Supreme Court of the values, constitutions are based, in a changing social and historical situation and a formulation of the principles serving as criteria in an estimation of acts of the legislator are characteristic. In other words, an American model comprises an estimation of laws from the point of view of the law. As the common law, it ontologically precedes the established law, like the general law has a priority in relation to the law, principles of the law or validity possess a priority in relation to the text of the hand-written constitution. In this sense courts interpreted a well-known expression of judge Coke: "The parliament is not capable to change the basic principles of validity embodied in a general law by itself". In 350 years the court in the country of continental European legal family - the Constitutional court of Germany declared the same: "the Natural right is stronger than positive".

A European model of the constitutional jurisdiction, characteristic for the countries of continental European legal family, the countries with traditional for their legal culture respect to the legitimate law was different. It proceeds from the reasoning used for grounds of the constitutional jurisdiction, in particular from the reasons of prist Sijesa who for the first time formulated the idea of the special judicial control over observance of a priority of the constitution by the state bodies. However till now this idea is challenged in the continental European countries. Its supporters recognize that from the point of view of division of authorities justice is intended for protection of the law against its infringement by imperious acts. And if the right formulated in the constitution is broken by any state body in the competence of which there is no right to amend the constitution, in this case the special judicial body should protect a constitutional law. Abbey Sijes has put forward the requirement of protection of the constitution by the constitutional court proceeding from rather simple arguments: "the Constitution is a set of obligatory legislative rules; if it not so it is insignificant. If it is a set of obligatory rules it is possible to ask where the instance protecting it is, where the judicial authority protecting this code is. In civil life such an omission would be however inexplicable and ridiculous. Why do you bear it in political life? Laws... comprise an opportunity of their non-observance, so it is necessary to force their observance".

From the times of judge Coke the judicial control over constitutionality of laws which since 1803 is carried out by the Supreme Court of the USA is in the base of the constitutional jurisdiction. But in Europe in XIX century, despite of the existence of the idea of constitutionalism, the constitutional jurisdiction could not be formed yet. Even in England legal practice was guided by sovereignty of the parliament. Revolutionary political processes in France cause extreme instability of the constitutional legislation so in this country of the Romanic-German legal family the constitutional jurisdiction would be senseless. Constitutions of the German countries served as a compromise between monarch authority and not strong enough bourgeoisie, they actually fixed police modes. In this connection hand-written constitutions yet were not constitutions in the true sense, they could not carry out the function of real restriction of the authority by the law, and naturally the question on judicial protection of constitutional laws practically was not urgent. Besides the establishment of the judicial control over constitutionality of statutory acts would break the political compromise for the benefit of national representation. Under those conditions such a situating was perceived more likely as negative.

The judicial control over observance of constitutional laws was founded for the first time (within the framework of the general jurisdiction) in Portugal by the Constitution of 1911 created under direct influence of the Brazilian Constitution of 1891 in which the North American model of the concrete control over constitutionality of statutory acts was adopted. "The Portuguese system" of the constitutional control started its existence from the moment of acceptance of the Constitution of 1933, continued to operate during reforms between1974 and 1976. According to the Constitution of 1976 the Constitutional Tribunal of Portugal has very large powers. The basic ones among them are the control over constitutionality of legal acts and international contracts which is realized by the Tribunal during the realization of procedures of the preliminary control (article 278), by the concrete control (article 280), and also by the abstract control (article 281.).

In Spain under the Constitution of the Second republic (1931) the special court, first in Europe, was created - the Court of constitutional guarantees, called to protect from legislative infringements not the constitution in general, but rights of the individual. However, having existed for less than two years, this court which actually did not have any relations to protection of the rights, became the court similar to the Senate, the upper chamber of the parliament and served as a stage of political confrontation of the "right" and the "left" which subsequently ended in a civil war.

Only after World War II in the countries relieved from totalitarian modes, the special constitutional justice really guaranteeing fundamental laws and freedoms of citizens was founded: in 1948 in Italy, in 1949 in Germany. Subsequently the constitutional courts were founded in Spain and Turkey, and in Portugal - the Constitutional Tribunal. In France the Constitutional Council, a body possessing the unique competence in the way of the preliminary control over constitutionality of laws was created. Switzerland and Greece have no constitutional courts, but the Swiss Allied Court possesses the competence of the concrete control in the relation to Canton legislations (similarly to American model of the constitutional jurisdiction), and in Greece the Supreme Special Court carries out the subsequent control over laws of the country. In Sweden and Netherlands in the 70s decisions against establishment of the judicial constitutional control were accepted.

According to the American model (the salvation of constitutional-legal cases by the Court of the supreme appeal or supervising instance) the constitutional jurisdiction is always carried out in the form of consideration by court of a concrete dispute on the law. Therefore it was considered, that the court working according to the American model, is less often compelled to make decision of political character rather than constitutional-legal. However the Supreme Court of the USA depending on a political situation had to make decisions both for the benefit of and against racial discrimination.

Historical features of the development of the country have caused non-standard character of the British constitution. There is no constitution created on one occasion in Great Britain. The peculiarities of the Constitution concern the form, but do not concern its contents or essence. Under the form the British Constitution has a combined, unsystematic character; it consists of two parts - written and unwritten. All branches of English law have such a character, therefore the constitutional legislation seems to be not so precise. The British Constitution is frequently named as unwritten, meaning the circumstance, that it "has never been written down" in a uniform act. The unwritten Constitution of Great Britain is characterized by the fact that it includes separate parliamentary acts, statutes, judgments and a so-called general law. Thus practical frameworks of such Constitution are limited to nothing and at some times it is impossible to establish, what is considered the main law of the country.

The original system of the English constitutional law as a whole covers all sides of this regulation, but each of the components included in these law - judgments, a law or a custom - does not apply for a role of the general principles; all of them, as a rule, are obliged by the origin to special cases, separate needs which have caused an addition or adaptation of the existing order of the solution of those or other questions to new circumstances. The named sources of the constitution, however, develop gradually: a role of a case law weakens, because its casuistic partcularism interferes with creation of uniform rules of the law. New Zealand Constitution has a similar form.

According to hierarchical structure of the judicial system, there exist in England two kinds of courts: the supreme and the lowest though they are served by judges of three categories.

The House of Lords and Judicial Committee of Privy Council are not included in the system of the supreme courts of England and Wales according to the accepted classification by virtue of their exclusive position to courts of the United Kingdom. After Great Britain joining the structure of the European Community a new classification in English literature appeared: the first in the system of courts the European Court in Luxembourg is. English lawyers justify this classification by the fact that since the precedent of 1974 (Yan Duyn V. Home Office) practice of sending to the European Court was established in order to get its opinion and cases containing an international element.

The main law of Canada of 1982., with the edition of Act on Canada, has got the systematized character, having included 25 acts since 1867 regulating both constitutional and unconstitutional questions, having left behind some standards of constitutional character (for example, concerning the election right).

The constitution of Bulgaria accepted by National Assembly on July, 12, 1991, has founded a new body having no place in the system of the state bodies which were established in earlier working constitutions of Bulgaria - the Constitutional Court of Bulgaria. A normative basis of activity of the Constitutional Court of Bulgaria is chapter 8 of the Constitution and also some other standards of the Constitution. According to article 152 of the given Constitution the Law « On the Constitutional Court « has been accepted. The main task of the activity of the Constitutional Court consists in maintenance of leadership of the Constitution. The Constitutional Court is not included into the system of judicial authority and takes an independent place among the supreme state institutes. The Court consists of 12 judges elected on one- third system basis correspondently by National Assembly, the President and General Assembly of judges of the Supreme Cassation and Supreme Administrative Courts for the term of 9 years. Acts of the Constitutional Court are final. The acts recognized unconstitutional are not applied from the date of the decisions become valid. Decisions of the Constitutional Court are obligatory for all state bodies, legal persons, and citizens. Under the law any decision of the Court cannot be cancelled or suspended.

Occurrence of the specialized bodies of the constitutional control can be related to the 20s of the last century. In 1920 the first constitutional court was created in Austria. In this connection defining such a model of law protection of the constitution the following terms are used: "West-European", "European", "Austrian". It is necessary to notice, that the second, most widespread model in the given sphere is "American". Its main attribute is performance of the basic function on maintenance of the constitutional control by courts of general jurisdiction.

In the USSR between 1917 and 1977 4 Constitutions were accepted: in 1918, 1924, 1936, 1977. Acceptance of each of them meant essential changes in the life of a society and determined a new stage of the development of the country. Despite of the essential features inherent in each of them, they developed according to the principle of law succession reflecting preservation of socialist values, consolidation of the Soviet power, they had a class character, acting as an embodiment of dictatorship of the working class, and later of its supervising role. The basic role in the constitutional control was allocated to permanent supreme joint body of the government: at a level of the USSR - to Presidium of the Supreme Soviet of the USSR, at a level of republics - to Presidiums of the Supreme bodies of the republics. The given system showed its the inconsistency in practice. In May, 1990 in the USSR the Committee of the constitutional supervision of the USSR started to operate.

Russia had a better way. In 1991 the Constitutional Court was created in Russia. The basic questions of its organization and activity were settled in the Law of the Russian Federation from May, 6 1991г. "On the Constitutional Court of the Russian Federation". Accepted in December 1993 the new Constitution of Russia made essential amendments in the status of the Constitutional Court, its competence, etc. It, in comparison with the previous ones, fixed the organization and activity of the given body in detail. In the summer 1994 Law "On the Constitutional Court of the Russian Federation" was accepted which in detail comprehended its organization and activity. The status of the Constitutional Court as a component of judicial authority, as a specialized body of the constitutional control was precisely determined.

In connection with disintegration of the USSR in 1990 and forming of the Pridnestrovskaia Moldavskaia Respublika on September 2, 1990, at the twelfth session of the first convocation of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika the Constitution of the Pridnestrovskaia Moldavskaia Respublika was accepted on September, 2, 1991, the chapter12 of which determined the status of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika (article 99-100).

In view of construction of a sovereign, independent, democratic, and lawful state, on December 24, 1995 at a national referendum the second Constitution of the Pridnestrovskaia Moldavskaia Respublika was accepted. As a result of the acceptance by the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika in the present Constitution of two blocks of amendments (on December 2, 1998 and on June 30, 2000), the structure of bodies of the government was changed and the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika became a part of the system of judicial bodies.

According to article 86 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and article 1 of the Constitutional law of the Pridnestrovskaia Moldavskaia Respublika «On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" - the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is a body of the constitutional control independently carrying out judicial authority by means of the constitutional legal proceedings. A task of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is warranting of the leadership of the Constitution of as main law of the country in all territory of the Pridnestrovskaia Moldavskaia Respublika. Main principles of activity of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika are the leadership of law, independence, collective nature, the publicity, full and all-round disposal of legal proceeding and validity of the decisions accepted by it, competitiveness and equality of the sides. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika possesses the wide competence regarding both realization of the constitutional control and consideration of conformity of acts (the constitutional laws, laws and other legal acts, international contracts of the Pridnestrovskaia Moldavskaia Respublika,) the Constitution of the Pridnestrovskaia Moldavskaia Respublika, law practice, activity of elective bodies and officials of the local self-management regarding decisions and legal acts accepted by them, complaints of citizens on infringement of their constitutional laws and freedom. By inquiries of courts it examines conformity of the law applied or subject to application in every concrete case. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika gives obligatory interpretation of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and constitutional laws of the Pridnestrovskaia Moldavskaia Respublika.

The idea of a lawful country is based on necessity of achievement of harmony and justice in a society. Century experience of the state legal development developed the basic attributes allowing at their realization in the life of a society to protect the person from an arbitrariness of the state, to achieve an optimum ratio of interests of the state and the person. The theory of a lawful country was initially pawned by such thinkers as Platon, E. Kant, D. Lock, G.V. Gegel, Montesquieu, etc. This idea as a counterbalance to absolute power was developed by known in Russia N.M. Korpunov, B.A. Kristjakovski, P.I. Novgorodtsev, etc. Realization of the basic attributes of a lawful country is one of the conditions of its formation, and they reflect the movement to a civilized society. It is possible to single out the basic distinctive attributes of a lawful country as follows: leadership of the law, the organization and functioning of sovereign authority according to the principle of division of legislative, executive, and judicial functions, maintenance of the mutual responsibility of the state and citizens.

The leadership of the law reflects not only the contents of laws but also not to a lesser degree coherence of the state and its bodies and officials, and also requirements to all citizens to observe and execute laws. The leadership of the law means a certain hierarchy of statutory acts excluding any contradiction between them. In any country laws should correspond to the standards of the international law. The main law (Constitution) is predominating in this scale of ranks and all other statutory acts should correspond it and not contradict. Civilized existence of the government can be only in accordance with a principle of precise differentiation of legislative, executive and judicial authority and the organized mechanism of obstacles and counterbalance between them. Any authority should not appropriate functions unusual for it and precisely be guided by the law. One of the major features of a lawful country is existence of the judicial constitutional control, that is the right of a certain judicial body to observe in the forms established by the law and procedures the conformity of the Constitution of the country to the current legislation. For these purposes the body of the judicial constitutional control is allocated with the right of a cancellation of laws (or separate provisions of laws), recognized by it as not corresponding to the Constitution, and accordingly, a duty of interpretation of the constitutional standards which is the basic function of the judicial constitutional control.

In Germany, Austria, Spain, Belgium and Turkey lawful bodies possess the right to rise in the constitutional court procedure of the concrete control. As a condition to request the constitutional court is such a position when the body (usually it is a court) comes to a conclusion about illegality of the law which it should apply. In that case the court should suspend investigation of the case and wait for the corresponding decision of the constitutional court. Suspend of consideration of an affair and the request of court to the constitutional court are possible either by virtue of official duties of the judge or only on the basis of the petition of one of the sides of the process.

Such a procedure corresponding to "centralized" constitutional jurisdiction assumes that an ordinary court can both interpret the constitution and examine constitutionality of those laws which the court applies. But at the same time the court has no right to declare on its own the law insignificant. Such competence belongs only to one, special judicial instance that allows to avoid different interpretation of one and the same standard of the constitution or the law in decisions of different courts of the first instance, and decisions of the constitutional court get force of obligatory acts of interpretation of the law. The greatest interest represents the model of the mixed type working in Portugal. According to the Constitution of Portugal ordinary courts are not obliged to bring a question on constitutionality of the standard they have doubts about to the Constitutional court; courts simply do not apply the law contradicting to the constitutional principles and positions; In its turn, the judgments accepted in view of a recognition of the corresponding law as unconstitutional can be challenged in the constitutional court for legitimacy of a recognition of the law to be unconstitutional.

For protection of the constitution in the majority of foreign countries the constitutional supervision which duty is the control over conformity of laws and legal acts of the constitution is stipulated. Functions of the constitutional supervision are assigned not to elective parliaments but, as a rule, on judicial bodies. In a number of countries (the USA, Switzerland, Japan) the Supreme courts are proclaimed as the supreme body of the constitutional supervision; in some countries the constitutional courts (Germany, Austria, Italy) or the constitutional councils (France) are created. Bodies of the constitutional supervision can solve the problem on constitutionality of laws up to the moment they come in force (France, Ireland) or after coming into force (the USA, Switzerland). The acts recognized as unconstitutional either are cancelled or their action is stopped.

Thus, the function of the constitutional control is very important in maintenance of the constitutional legality in any country.

Notes

constitutional justice legal

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