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ОглавлениеPart 1 Basics of the theory of state and law Part 2. Basics of constitutional law Part 5. Basics of administrative law Part 6. Basics of criminal law Для бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуPart 2. Basics of constitutional lawChapter 11. Constitutional Law of the Russian Federation... Basics of Constitutional Order of the Russian Federation11.1. Constitutional Law of the Russian Federation as a Branch of Law: General DescriptionConstitutional law is the backbone branch of Russian law. It includes legal norms which set forth and provide for the primary human rights and freedoms and establish a certain system of government bodies to this end. The evolution of constitutional law as a branch of law illustrates democratisation of the state, actual efforts to maintain the necessary balance between freedom and authority, since if the former “finds itself outside of stable statehood, it can degenerate into anarchy and overindulgence, and if statehood is based on denial of freedom, an individual is burdened with totalitarian chains”. Thus, one may conclude that the main meaning of constitutional law is finding the balance of authority and freedom in the society to ensure its well-balanced development. Constitutional law establishes clear framework for various conflicting political powers, it creates just principles for carrying out political authority, thereby creating prerequisites for maintaining civil peace and accord. Thus, constitutional law is a unique form of constituting democracy in the society. Subject matter of constitutional law encompasses two aspects: — establishment and protection of human rights and freedoms, relations between individual and the state (constitutional law contains basic norms concerning an individual’s legal status, their freedoms and boundaries thereto, and obligations); — constitution of state and its authority (not only does constitutional law set forth the basic political structures, but it also determines their relationships, legal mechanisms of coherent and efficient cooperation among all state authorities). Method of constitutional law is a corpus of manners and ways of legal influence onto social relations constituting the subject matter of constitutional law. The basic methods are imperative (this method allows no discretion at the part of an individual) and dispositive (this method leaves discretion to an individual as to whether to enjoy or refrain from enjoying the rights and to choose the optimal conduct). The source of constitutional law is a certain form through which norms of constitutional law are expressed. One believes that the sources of constitutional law can be either written or non-written and include natural, as well as positive law. Natural law is a sum of rights and freedoms which have been historically recognised as indispensable, independent from the will of state and its rulers, such rights and freedoms not being a gift, but rather a foundation of normal existence and operation of any community of people. “The state is bound with these primary ethical and rational imperatives and must recognise, observe, and warranty these”. One must admit that in many civilised states, natural law is reflected in positive law (coming from the state). In Russia, for instance, the concept of natural rights is set forth in section 2 Article 17 of the Constitution, which declares that “fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth”. The sources of positive constitutional law include: 1) the Constitution of the Russian Federation (adopted at national voting on December 12, 1993) and Constitutions of Republics which are part of the Russian Federation), charters of other constituent entities (subjects) of the Russian Federation; 2) federal constitutional laws (all of which are sources of constitutional law) and federal laws (those which govern the application of human rights and freedoms, system of state authority); 3) treaties and agreements: international (entered into by and between the Russian Federation and other states) and internal (entered into by and between the Federation and its territories); 4) declarations; 5) rules of the chambers of the Federal Assembly of the Russian Federation; rules of the legislative (representative) bodies of subjects of the Russian Federation; 6) normative decrees and orders issued by the President of the Russian Federation, acts of higher officials of subjects of the Russian Federation; 7) normative regulations and decrees of the Government of the Russian Federation, executive bodies of subjects of the Russian Federation; 8) court decisions (resolutions of the Constitutional court of the Russian Federation, decisions of the Supreme court of the Russian Federation related to constitutional rights and freedoms, as well as clarifications in court practice); 9) legal acts of the USSR and RSFSR, which are applicable insofar they do not conflict with the current Constitution; as new laws and other normative acts are adopted, the legal acts of the USSR and RSFSR decrease in number; 10) normative acts of municipal authorities; 11) customs of constitutional law. The system of Russian constitutional law consists of the following instututions: 1) fundamentals of constitutional order; 2) basic rights and freedoms of man and citizen; 3) the federal structure; 4) the electoral system (electoral law); 5) presidential power; 6) legislative power; 7) executive power; 8) state authority of the subjects of the Russian Federation; 9) judiciary power and prosecutor’s office; 10) local self-government; 11) manner of amending and reviewing the Constitution. 11.2. Definition and Legal Features of a ConstitutionConstitution is a legal document, the foundation of statehood, rule of law, and public order in a given society. Due to its legal nature, a constitution is a political document, too, since it is the foundation of all political processes in the society. A constitution is the fundamental law of a state which is characterised with the highest legal force and provides for the basic rights and freedoms of man and citizen, the system and form of interaction of state authorities. One might say that the constitution sets forth the framework for interaction between an individual, society and the state. A constitution performs the following functions: 1) integrative (constitution is meant to integrate the society and to bring its citizens together based on generally acknowledged values and principles); 2) continuity in the evolution of statehood (constitution envisages continuity of state authority and firmness of statehood and historically forged national unity); 3) maintenance of national sovereignty (it is the constitution that sets forth that the people are the only source of power and that their right to decide their destiny is inalienable); 4) combatting extremism, separatism, and violent forms of social reformations (constitution ensures repression of radicalism, observance of declared rights, and decent life that no antidemocratic revolution can threaten); 5) territorial integrity of the state (constitution must prevent territorial disintegration and must ensure state’s indivisibility and independence at the international stage). Basic legal features of a constitution are as follows. 1) Supremacy of constitution (which is expressly declared in section 2 Article 4 of the Constitution of the Russian Federation). Supremacy of constitution means: — subordination and binding character upon the state; — necessary coordination of all subjects’ activities with constitutional norms; — highest legal force, i.e. predominant position in the national system of law. Laws and regulations which are adopted in the Russian Federation must not conflict with the Constitution, and state and municipal authorities, officials, citizens, and their unions must strictly abide by the Constitution and other laws (section 2 Article 15 of the Constitution of the Russian Federation); — direct application of the Constitution set forth in section 1 Article 15 of thereof which means that the concerned individual may apply for judicial relief of their rights, referring to their constitutional wording. 2) Key role in the legal system of a state which does not only mean formal congruence between various normative acts and the Constitution, but also assumes creation of a legal system which would facilitate enforcement of all constitutional norms and declarations and which would provide efficient governance of social relations according to the principles and spirit of the basic law. 3) Special manner of protection, adoption, review, amending, and modifying the Constitution which is established due to the fact that the entire system of state authority is aimed at maintaining supremacy of the Constitution and protecting its norms. A special role is given to the Constitutional Court of the Russian Federation. Almost any state’s legislation envisages elaborate manner of reviewing or amending the constitution. This does not necessarily imply impossibility of reviewing of amending the constitution (see, for instance, Articles 134–137 of the Constitution of the Russian Federation). 11.3. Fundamentals of the Constitutional Order of the Russian FederationOne must understand clearly that constitutional order does not merely lie in the existence of constitution or its formal (mechanical) observance. Constitutional order is a special characteristic of social order, whereby the state enforces human rights and freedoms, acting in accordance with a truly democratic constitution. Other definitions of constitutional order are present in academic literature. For instance, in a narrow sense, constitutional order means a way of state organisation which is set forth in its constitution and is further elaborated in current legislation. In a wide sense, constitutional order is a sum of economic, social, political, legal, and ideological relations which arise in connection with organisation (legal furnishing) of higher state authorities, state structure, and legal bonds among the state, the society, and the individual. In any event, to establish constitutional order means to clearly define principles of state organisation with regard to individuals and civil society. Chapter 1 of the Russian Constitution is devoted to the fundamentals of constitutional order and is titled respectively. It consists of 16 chapters, which constitute a certain system and conventionally may be divided into four primary groups. 1. Humanitarian fundamentals of constitutional order. Humanitarian fundamentals of constitutional order underline the most crucial postulate — the state is created to serve the individual, and not vice versa. The state refuses to apply totalitarian approach in governing social relations, whereby an individual is disregarded and deprived of many possibilities to fulfil their potential. The essence of this approach is expressed in Article 2 of the Russian Constitution: “Man, his rights and freedoms are the supreme value. The recognition, observance, and protection of the rights and freedoms of man and citizen shall be the obligation of the state”. All of the following articles of the Constitution and the entire system of normative acts are subordinate to this super-principle. The humanism of the constitutional order is also illustrated by sovereignty of the people. Article 3 of the Constitution of the Russian Federation declares: “1. The bearer of sovereignty and the sole source of power in the Russian Federation shall be its multinational people. 2. The people shall exercise their power directly, as well as through the bodies of state power and municipal self-government. 3. The supreme direct expression of the power of the people shall be referenda and free elections”. People’s sovereignty is the foundation and source of power, and people’s will expressed through constitutional forms is the foundation of any democratic state. 2. Constitutional characteristics of the Russian Federation. Article 1 of the Constitution of the Russian Federation envisages that the Russian Federation is a democratic, federative, rule of law state with republican form of government. Article 7 sets forth that Russia is a social state, and Article 14 declares that it is a secular state. These are the basic constitutional characteristics of Russia as a state. The term “democratic state” emphasizes Russia’s orientation towards creation of a mechanism of authority which is aligned with people’s will and universally acknowledged rights and freedoms. In a democratic state, civil society is developed, as well as representative forms of people’s authority (for greater detail, please see para. 3.4. of the textbook). State structure of the Russian Federation is based on the principle of federalism, meaning that the state consists of a number of equal subjects — there are currently 85 (for greater detail on federalism, please see para. 3.3 of the textbook). Article 5 of the Constitution of the Russian Federation sets forth that the Russian Federation consists of republics, territories, regions, cities of federal importance, an autonomous region, and autonomous areas — equal subjects of the Russian Federation. Article 5 also prescribes that the federal structure of the Russian Federation is based on its state integrity, the unity of the system of state authority, and the division of powers between the bodies of state power of the Russian Federation and those of the subjects of the Russian Federation (section 3 Article 5). Russia is a rule of law state, i.e. one whose activity is subordinated to law and is aimed at observance of human rights and freedoms (for greater detail on a rule of law state, please see para. 6.3. of the textbook). A social state is one designed to maintain social justice, social welfare, and social security. As opposed to a socialist state, a social state does not strive to make citizens “equally free”. Instead, a social state supports the most vulnerable social groups, creates prerequisites for full employment, and ensures affordability of education and proper medical services. Section 1 Article 7 of the Constitution of the Russian Federation declares that social state’s policy is aimed at creating conditions for a worthy life and free development of people. Labour and health of people are protected, a guaranteed minimum wages are established, state support is ensured to the family, maternity, paternity, and childhood, system of social services is developed, state pensions, allowances, and other social security guarantees are established (section 2 Article 7). Secular state means that: а) no religion may be established as a state or obligatory one (section 1 Article 14); б) religious associations shall be separated from the state and shall be equal before the law (section 2 Article 14). These rules are not universal for all states, even democratic ones. For instance, Great Britain officially declares the predominance of the Anglican church, and Scandinavian states — the predominance of the Lutheran church. Nevertheless, this does not mean that these countries reject freedom of belief. The secular character of the state means that officials of the state are entitled to profess any religion, but are prohibited to grant privileges thereto or to create obstacles to those professing a different religion. The republican form of government (for greater detail, please see para. 3.2. of the textbook) underlines appointment by election of a head of state and replaceability of certain officials. 3. Fundamentals of state authority organisation in Russia The fundamentals of state authority organisation in Russia are, above all, state sovereignty and separation of powers. Article 4 of the Constitution declares that “1. The sovereignty of the Russian Federation shall cover the whole of its territory. 2. The Constitution of the Russian Federation and federal laws shall have supremacy in the whole territory of the Russian Federation. 3. The Russian Federation shall ensure the integrity and inviolability of its territory”. State sovereignty is derivative from people’s sovereignty. The former is defined as supremacy and independence of state authority inside the country and in international relations. Thus, the primary features of Russia’s sovereignty are supremacy of state authority (its unboundedness by anything but the Constitution, natural law, and state laws), independence of state authority (it is entitled to enact laws and regulations and rule over its territory), state integrity (separation of territories infringes the Constitution and is inadmissible), and inviolability of its territory. Article 10 of the Constitution underlines that “the state power in the Russian Federation shall be exercised on the basis of its division into legislative, executive, and judicial power. The bodies of legislative, executive, and judicial power shall be independent”. Article 11 provides for the system of federal bodies of state power in the Russian Federation. According to this Article, the state power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly (the Council of the Federation and the State Duma), the Government of the Russian Federation, and the courts of the Russian Federation. State authority in subjects of the Russian Federation is exercised by bodies of state authority created by these subjects. Внимание! Авторские права на книгу "Basics of Russian Law. Textbook" (Malko A.V., Subochev V.V., Fedorov G.V.) охраняются законодательством! |
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