From: Olga Valueva [mailto:[log in to unmask]]
Dear Readers,
Institute for Law and Public Policy is glad to inform you that the
issue ¹ 4 (57) of the Russian language journal "Sravnitelnoe
Konstitutsionnoe Obozrenie" will appear on the 10 January. Our journal
has been published in Russia since 1993 ("Konstitutsionnoe Pravo:
Vostochnoevropeiskoe Obozrenie" till 2003) and among its readers are
justices of constitutional courts (and another high courts),
comparative constitutional law experts, researchers, politicians from
more than 30 countries. The full infomation about journal, another
publications and activities of the Institute is available at our
website: http://www.ilpp.ru
Here is the content of the issue with short summaries.
Sravnitelnoe Konstitutsionnoe Obozrenie
2006. No. 4 (57)
Special Reports
Oleg Zaznaev
The Russian Form of Government: the Past, the Present and the Future
The Constitution of the Russian Federation doesn’t explain the concept
of the “form of government”, but formally, Russia can be determined as
the state with a half-presidential form of government. The author
argues that political practice is transforming the half-presidential
form of government into the presidential. The article is devoted to
the analysis of the reasons for such a transformation. The author
reviews the process of adopting the present form of government in the
Russian Federation, he also attempts to predict the future of this
form of government and analyzes possible case scenario of the
elections of 2008.
Paul Chaisty
The Pros and Cons of Majoritarianism for Russian Lawmakers
In this article the author analyzes the consequences of the creation
of reliable pro-Kremlin majorities in both houses of the Federal
Assembly during the Vladimir Putin presidency. He examines the impact
that the emergence of pro-Kremlin legislative majorities has had on
the lawmaking process. Paul Chaisty argues that single-party majority
rule in both houses of the Federal Assembly provides an important
resource with which to strengthen the Russian state, but at the same
time this system creates new problems for the lawmakers and only time
will show whether the new system is viable and effective or not.
Peter Roudik
Amending the Constitution: Bosnian Way
Amendments to the State Constitution of the Federation of Bosnia and
Herzegovina, proposed by the international community and rejected by
the federal legislature in April 2006, tried to create a more
centralized state able to accommodate the interests of its citizens.
Using the amendment procedure included in the Dayton Constitution,
these amendments appeared to remove some of the existing
contradictions and solve two critical questions: how to find an
appropriate balance between group and individual rights, and how to
organize legislative and executive power to ensure participation of
all groups, including minority groups. Disregard of recommendations
submitted by the international community led to the consolidation of
the existing situation and the affirmation of the ethnic principle in
Bosnia and Herzegovina.
Elena Yatsunskaya
Ukraine: New Elections, New Election System, New Local Government?
The author reveals the problems created by the proportional election
system which has been recently introduced in Ukraine. The author
analyses all advantages and disadvantages of the new election system
dwelling on the example of the local government elections in March
2006. In course of the analysis, Elena Yatsunskaya raises the question
about the impact of the “party factor” on the activity of the local
government bodies and on women representation in the local government
in Ukraine. In the end of the article the author argues about the
possibility of conflicts, which is caused by the disadvantages of the
proportional election system.
Gilles Favarel-Garrigues
Russian Police on The way to Reformation
The article is devoted to the analysis of the situation with Russian
law machinery. The author points out the lack of effect of Russian
police system and criticizes the existing system of control over the
law enforcement agencies. The article also contains the review of the
statistics, which demonstrates the low trust level in police among
Russian citizens. The article has a descriptive nature and helps to
understand the most serious problems of Russian law machinery.
Feature: Terrorism and Democracy
Cyrille Begorre
The Definition of Terrorism and the Challenge of Relativism
What is the definition of terrorism? Why does the world community need
a common understanding of this term? Is it possible to unambiguously
and consistently define terrorism? The author of this article attempts
to answer these questions, asserting the necessity of formulating such
a definition while underscoring problems standing in the way of a
precise definition of terrorism and finally arriving at his own
solution to this problem.
Michel Rosenfeld
Judicial balancing in times of stress: comparing diverse approaches to
the war on terror
The author examines modern situation for antiterrorist war in Israel,
Great Britain and the United States of America. The article focuses on
judicial balancing in dealing with conflicts between liberty and
security. The author also revises advantages and disadvantages while
realizing such balancing in the way to make it optimized
Gabor Halmai
Public order and security versus rule of law in transition countries
In the first part of the article the author deals with the following
questions: is there any contradiction between public order/security
and the new-born rule of law that is specific to Central and Eastern
Europe; and what are the dilemmas for the constitutional courts in
this region? He analyzes decisions of the constitutional courts of
Hungary, Czech Republic and Germany in order to understand how the
rule of law is interpreted in each country. In the second part of the
article the author attempts to answer another question: on what basis
can fundamental rights, especially the right to life, as an almost
absolute right, be restricted in order to protect public order and
security? He also scrutinizes the right to life in the context of the
constitutional courts’ decisions and draws the conclusion about the
potential of the limitation of this right.
Andras Pap
Ethnic Discrimination and the War Against Terrorism -- The Case of
Hungary
The author presents a comprehensive research of law-enforcement
activity in Hungary in the context of counter-terrorist campaign. The
article reviews special problems with ethnic profiling and ethnicity
based selection. The author also analyses existing situation in
Hungarian legislation that confers the unlimited credentials to law
machinery for terrorism opposition, which can lead to a discrimination
of different ethnic groups.
Freedom of Speech and Religion
Eric Barendt
Free Speech and Religion: Secular and Religious Perspectives on Truth
The main aim of this article is to show the continuing importance of
truth arguments and claims in the context of speech concerning
religion. The author tries to answer the following questions: to what
extent should the society respect claims of religious communities to
propagate and defend their vision of truth and how far are those
claims compatible with truth-based arguments for freedom of speech? He
argues that religious perspectives and truth-claims form only a part
of public discourse and believers are fully entitled as secular
liberals to the freedom of speech. The author believes that the
argument for the regulation of speech that may be offensive to
believers is false and proves his statement.
Monroe E. Price
Religious communication and its relation to the state: comparative
perspectives
The author debates about important themes in the modern world: the
privileging, banning and subsidizing of religious communication and
the cases when they may be encouraged or restricted. The article gives
a comprehensive examination of the situation between freedom of speech
and religion in terms of competition, contest and geopolitics, which
can help to work out the most effective rules protecting main rights
of the individual.
Council of Europe
Beate Rudolf
Council of Europe: Von Hannover v. Germany
The article presents the analyses of one of the most famous decisions
of the European Court of Human Rights rendered in recent years. In
this case the Court deals with a difficult question of balancing
between freedom of the press and privacy. The author examines the
circumstances of the case, decisions of the national courts, the
practice of the European Court and its arguments in this decision. The
aim of the article is to formulate the standards for determining the
public interest in the light of public figures' legitimate expectation
of privacy.
Post-Soviet Eurasia: Political Institutions
Richard Sakwa
Comparative regime change in post-Soviet Eurasia
The article provides a comparative analysis of executing the
democratization process in post-Soviet Eurasia and earlier in Latin
America and Southern Europe. The author also discusses a certain
number of factors that have to be reviewed while analyzing:
preconditions, cultural factors, crafting democracy and others that
can help making the overview comprehensive and theoretically clear.
Jeremy Smith
The Soviet Orphans: The Historical Roots of the Transdniester, Nagorny
Karabakh, Abkhaz and South Ossetian Conflicts
This article analyzes the institution of national autonomy and its
role in regulating national relations. The author attempts to show
that the system of national autonomy that existed during the Soviet
Union, ceased effectiveness after its collapse and led to conflicts on
national grounds. The article pays special attention to the different
principles of regulating interethnic relations and also subjects
present-day governmental principles of territorial integrity to
criticism.
Maria Raquel Freire
Licinia Simao
The EU’s neighborhood policy towards the Southern Caucasus: searching
for commonalty in a patchy scenario
In last ten years situation in the Southern Caucasus change a lot.
Each state present different political and institutional stages of
development, distinct political cultures, and disparate paths in their
transition courses towards democratization. It causes some problems
with elaboration of the EU’s policy in this region. The aim of the
article is to analyzing the implications of the transition efforts and
stability in the area for Europe in general, along with the different
roles each of these pieces – Armenia, Azerbaijan and Georgia – play in
the complex strategic Caucasian puzzle.
Constitutional Justice
Gary Jeffrey Jacobsohn
An Unconstitutional Constitution? A Comparative Perspective
The purpose of this article is to draw upon a rich vein of
jurisprudential thinking from judiciaries outside of the United States
to address the puzzle of the unconstitutional constitutional
amendment. The author focuses on two nations—India and Ireland—where
the question has given rise to some fascinating and instructive
jurisprudence. Unlike the United States Supreme Court, courts in these
countries have confronted the issue of implied substantive limits to
constitutional change through the formal amendment process. In
considering what is at stake for constitutional theory and practice,
the author relies on Edmund Burke to support the option of amendment
invalidation. He argues that for the amendment to be justified, the
whole constitution must be viewed together; and it must be compared
with the actual state of the people, and the circumstances of the
time.
In the Russian Constitutional Court:
Decisions & Comments
Alexander Vereshchagin
Dissents in Russian Courts
Despite continual interest in the important institution of justice, in
academic circles this subject has not received sufficient attention.
This article seeks to make up for this deficiency. The author reviews
the history of establishing differing opinions in Russian courts, and
analyzes various models of openness among such opinions. He also
supplies statistics of the varying opinions entered by Judges of the
Constitutional Court of the Russian Federation, which undoubtedly adds
to the demonstrativeness of this work.
PERSONA GRATA
Andrey Medushevsky
V.M.Gessen and the Theory of Transition: from Authoritarianism to
Democracy and from Democracy to Authoritarianism
The transition from one system of government to another continues to
raise questions that warrant interest in the present day. In this vein
the following article ascribes support for such attention, recounting
an individual who contributed significantly to developing this sphere.
The author describes V.M. Gessen’s political biography, summarizing
his views and positions on different constitutional formulations of a
government, and comparing them with other well known
philosophical-legal movements, both past and present.
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