«Comparative Constitutional Review»
Issue №4(125)

CONSTITUTIONAL WATCH

JUNE – JULY • 2018

United Kingdom, Germany, Israel, Colombia, Latvia, Mexico, Pakistan, Russia, Slovenia, Turkey, Switzerland

Landscapes of democracy

POLITICAL INCLUSION AS A REASON FOR MAJORITARIANISM AND COUNTER-MAJORITARIANISM (REFLECTIONS OF A CONSTITUTIONALIST)
Irina Alebastrova

This article is devoted to the question of counter-majoritarianism as a significant feature of developed democracy. The author argues that a trend of counter-majoritarianism is one of the strongest of modern political systems and analyzes the content, reasons, designation, and mechanisms of counter-majoritarianism. The essence and the goal of majoritarianism are the protection of rights and interests of minorities, while its guaranties include increasing the significance of the institutions of public power, which balance those expressed by the majority and express their interests. These institutions of public power include, for example, courts (constitutional courts, first and foremost), upper houses of parliaments, the decentralization of public power, quotas for political representation of minorities, and so on. The main reason for counter-majoritarianism is political inclusion.

As representative democracy now suffers from a crisis of confidence, there is a debate being held in France to provide a constitutional framework for the direct expression of people’s needs in legislative activity by representative socio-professional organizations. From this viewpoint, a deconstruction of French public law scholarship shows the inherent difficulty in adapting the system of national representation conceived since the 1789 Revolution in order to allow parliamentarians to express the general will and decide for and instead of populations in order to democratize suffrage and the growing complexity of society.

Law and religion

FORMATIONS OF BUDDHIST CONSTITUTIONALISM IN SOUTH AND SOUTHEAST ASIA

Benjamin Schonthal

From a subfield focused mainly on secular constitutions in Anglophone and/or European settings, the study of religion and constitutional law has gradually shifted its attention to religiously preferential constitutions in North Africa, the Middle East and parts of Asia. While this shift has produced a rich literature on Islam and constitutional law, it has almost entirely neglected Buddhism. This neglect presents a significant problem for scholars of comparative constitutional law because, as this article contends, some of the most important legal projects in South and Southeast Asia have been projects of Buddhist constitutionalism: attempts to use written constitutions and other basic laws to organize power in ways that protect and preserve Buddhist teachings and institutions, especially the institution of Buddhist monasticism, the sangha. By looking at the premodern roots of Buddhist constitutionalism and examining its distinctive formations in Sri Lanka and Thailand, this article explains how and why this particular form of religious constitutionalism has come to influence politics and law in contemporary South and Southeast Asia. The author briefly shows how the obtained results can contribute to explanation of social, political and legal evolution in other Buddhist countries of the region like Myanmar and Cambodia.

Constitutional amendments

The Italian Constitution, drafted by the Constituent Assembly on the basis of an agreement of different political forces, came into effect in 1948 already in the face of confrontation between the country’s largest political parties, the Christian Democrats and the Communists. The issue of constitutional reform was brought to the political agenda by the representatives of the ISP in the 1980s. In Italian society there is a consensus that changes should be made to the second part of the Constitution, which regulates the structure of the Republic, while the first part, which is devoted to basic principles and human rights, should not be adjusted. For a long time amendments to the Italian Constitution were adopted by the parliament, but in the 21st century three constitutional referendums were held on the complex revision of a chapter (2001) or a part of the constituent act (2006 and 2016).

Rigts an freedoms

This article considers the highly provocative and still unresolved issue of the current legal force of the Universal Declaration of Human rights, which was adopted by a resolution of the UN General Assembly on December 10, 1948. The forthcoming 70th anniversary of the Declaration provides a good reason to contemplate the truly unpredictable transformation of certain international treaties and instruments in the years after their adoption by the states and how a modern understanding of such documents might differ from the intentions and expectation of their founding fathers. As shown in the brief decryption of the drafting history of the declaration, the authors of the Declaration had to take into account the political environment of world politics in the second half of the 1940s and were limited by their intention to secure the maximum number of votes in favor of adopting the Declaration.

This article challenges the claim that authoritarian constitutions are indistinguishable from their democratic counterparts by examining the constitutional regime types of the twelve post-Soviet countries in Eurasia. First, the classic typology of systems of government is applied to all executive-legislative arrangements as stipulated by the first post-communist constitutions and their subsequent amendments, adopted between 1992 and 2017. Based on a thorough analysis of constitutional texts, it is shown that cases whose categorization is contested in the literature are in fact presidential rather than parliament-presidential. Second, these presidential constitutions codify presidential supremacy-a fundamentally non-liberal-democratic arrangement, the template of which can be found in the 1993 Constitution of the Russian Federation. Presidents in these systems stand above the system of functionally separated powers and are not subject to institutionalized checks and balances. This “Eurasian presidentialism” entails a constitutional doctrine of presidential supremacy, authorizing the head of state to ensure the “coordinated functioning and interaction” of the executive and the legislative and to define the political agenda.

Book review

THE CORPORATE MODEL OF LOCAL GOVERNMENT
Larichev A.A, Armen Dzhagaryan

Local government is given the special role in Russia’s constitutional order of ensuring effective cooperation between the state and civil society. The dual nature of local government is connected with the problems of balancing its state and societal beginnings so that the democratic elements serve as a check on the self-will of the bureaucracy and that economic growth served the social welfare of all. This book review analyzes the monograph of A.A.Larichev, which proposes a new view on the relevant problems of local government through prism of of understanding its models, which are identifiable according to subjective attributes – depending on the role of the population (commons, collective, etc.) in deciding significant local issues. This book review considers the virtues and vices of such a methodological approach and its potential for sociology and the humanities.

In the russian constitutional court

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT JUDGMENTS
Nos.17-P – 22-P 2018

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT RULINGS
Nos.863-О, 1112-О, 1113-О, 1114-О, 1117-О, 1120-О 2018

Comparative Constitutional Review • Issue№4(125)