Volume IX (2021) Issue 2
International Editorial Council Russian Editorial Board
Loïc Cadiet Sergey Belov (University of Paris 1 Pantheon-Sorbonne, France) (St. Petersburg State University) James KLEBBA Nataliya Bocharova (Loyola University, USA) (Lomonosov Moscow State University) Gleb Bogush Elisabetta Silvestri (Higher School of Economics) (Pavia University, Italy) Gennady Esakov Albert Henke (Higher School of Economics) (University of Milan, Italy) Vladimir Gureev Vernon Palmer (All-Russian State University of Justice) (Tulane University, USA) Nikita Lyutov (Kutafin Moscow State Law Univeristy) Janet Walker (Osgoode Hall Law School of York University, Canada) Dmitry Maleshin (Independent) Teresa Wambier Sergey Tretyakov (Pontifical Catholic University of São Paulo, Brazil) (Lomonosov Moscow State University) Francisco Verbic Alexander Vereshchagin (National University of La Plata, Argentina) (Independent)
ISSN 2309-8678 Chief Editor Dmitry Maleshin e-ISSN 2312-3605 Executive Editor Nataliya Bocharova Frequency of Publication: four issues per year Contacts: Published by www.russianlawjournal.org LLC "Publishing House "Business Style", [email protected] 119602, Moscow, Troparyovskaya St., [email protected] Bldg. 4, Floor 2, Room 802 All rights reserved. No part of this journal may be reproduced in any means without the Subscription enquiries prior permission of the publisher. The views should be directed expressed in this issue are those of the authors to the Publishing House and do not reflect the views of RLJ Editorial "Business Style" Council and Editorial Board. Russian Law Journal (RLJ)
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Special Issue: Socialist Constitutional Legacies
Sergei Belov (Saint Petersburg, Russia) William Partlett (Melbourne, Australia) Alexandra Troitskaya (Moscow, Russia) Guest Editors’ Foreword...... 4
Articles: Sergei Belov (Saint Petersburg, Russia) William Partlett (Melbourne, Australia) Alexandra Troitskaya (Moscow, Russia) Socialist Constitutional Legacies...... 8
Zdenek Kühn (Prague, Czech Republic) All-Pervasive Legacies of Socialist Constitutionalism? The Case of Judiciary...... 26
César Landa (Lima, Perú) Isabel Sánchez (Lima, Perú) The Social Issue in Peruvian Constitutionalism of the 20th Century and in the Case Law of the Constitutional Court: Influence of Socialist Constitutionalism?...... 44
Tomáš Gábriš (Trnava, Slovak Republic) The Legacy of Socialist Constitutionalism in Slovakia: The Right of the Slovak Nation to Self-Determination...... 70
Pui-yin Lo (Hong Kong, China) China’s Socialist Unitary State and its Capitalist Special Administrative Regions: “One Country, Two Systems” and its Developmental Implementation...... 92
Jane Henderson (London, United Kingdom) Socialist Constitutional Legacies in Regional Constitutions and Charters in Russia...... 125 GUEST EDITORS’ FOREWORD
SERGEI BELOV, Saint Petersburg State University (Saint Petersburg, Russia)
WILLIAM PARTLETT, University of Melbourne (Melbourne, Australia)
ALEXANDRA TROITSKAYA, Lomonosov Moscow State University (Moscow, Russia)
https://doi.org/10.17589/2309-8678-2021-9-2-4-7
Recommended citation: Sergei Belov et al., Guest Editors’ Foreword, 9(2) Russian Law Journal 4–7 (2021).
The idea of this special issue of the Russian Law Journal was a result of the round table “Post-Soviet Constitutionalism and Peace Building” at the X World Congress of the International Association of Constitutional Law held in June 2018 in Seoul, Korea. During the Cold War, socialist constitutions – first developed in the SovietU nion but later spreading to other parts of the world – formally stood for certain values, institutions, and concepts. These socialist ideas, institutions, and values along with those of Confucianism or Buddism were an alternative to the constitutional ideas of the West. The collapse of the USSR and reforms in post-Soviet countries led many people to believe that the world had reached the end of history and that all of the values, institutions, and concepts found in Socialist constitutions were to be placed in the “dustbin of history.” But, despite the rise of market capitalism in much of the post-socialist (and still formally socialist) world, ideas from socialist constitutions have persisted in many post-socialist political systems. Moreover, other countries that were never socialist themselves have borrowed and continue to employ ideas and principles from socialist constitutions. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 5
This Special Issue seeks to recover the neglected legacy of socialist constitutions. To do so, it will consider what socialist values, institutions, and concepts are and how different countries – with different political cultures and realities – have drawn on them. The object of the book is to, first, describe socialistvalues, institutions, and concepts and, second, examine their role in the contemporary constitutional theory and practice. The aim is to show the ongoing relevance of the values, institutions, and concepts contained in socialist constitutions to constitutional development around the world and to show how this correlates with national political cultures and constitutional traditions, especially those outside Western Europe and Northern America. One difficulty is that socialist constitutions were first written in the Soviet Union and then evolved during the 20th century. Marxist writings of 1920-30s were replaced with the constitutional theory and practice of the socialist states up to the end of 1980s. Some of the ideas, such as formal domination of the representative authorities or the system of procuratorial supervision in the system of government, were not really original. Others might have been more original. For the purpose of this research, the authors tried to stress the ideas, principles and values during the whole 20th century and which were strongly associated with socialist constitutions. This could, for instance, include the core ideas made in socialist constitutions in comparison with other approaches to constitutionalism in the world. From a practical point of view, it was difficult to demonstrate evidences of borro- wing of a principle or institution from the socialist system or to argue that specifics of a principle or institution demonstrate its socialist character. Direct evidence can be found in the materials of debates on constitution, practice of its interpretation (inter alia, by the constitutional or supreme court), scholarship and public debates in media, both in past and in present. Indirect demonstration of the socialist influence requires the comparative analysis of the ideas, notions and values in the socialist system and beyond – to demonstrate following the socialist path (at least in some dimensions) in the constitutional development. If you choose to take a jurisdiction or a group of jurisdictions, special attention is to be paid to the context – in terms of values and conceptual identity of the country, the attitude to liberalism and to socialist ideas of social and political organization. You may also want to define which socialist principles (e.g. priority of public interests), notions (e.g. forms of property) or institutions (e.g. centralization of the system of government) could be traced in the contemporary constitutional system and what is the evidence of their Soviet origin. The articles included in this Special Issue cover wide range of questions concerning the Socialist legacies as well as encompass different regions of the world. The article, which opens the Special Issue, authored by the guest editors of this Issue, represents the basic methodological and values approaches to studying the Socialist constitutional legacies. Sergei Belov, William Partlett and Alexandra Troitskaya demonstrate the difficulties of methodology of study these issues Russian Law Journal Volume IX (2021) Issue 2 6
(briefly mentioned above), define socialist constitutional values, their relationship with socialist ideology and then address the links between socialist constitutional institutions and the Socialist values. The authors conclude that some socialist values can be used in the prospective development of world constitutionalism, widening the values range of the constitutionalism to make it more universal for the different cultures of the world. Zdenek Kühn – a professor at Charles University in Prague and a judge at the Sup- reme Administrative Court of the Czech Republic – focuses on the value background of the courts and judicial practice in his home country and other post-socialist states of Central Europe. He argues that the post-socialist legal development bears some legacy from the old legal era, both socialist and pre-socialist periods. The judiciary in post- socialist countries of the Central Europe could be an example, still remaining specific of authoritarian model of judicial process. Professor Kühn describes some institutions to demonstrate this legacy of authoritarian justice. This is the reader to judge how persuasive are the arguments of César Landa from Pontificia Universidad Católica del Perú and Isabel Sánchez from Peruvian Constitutional Court in favor of showing the socialist origins of some Peruvian constitutional principles, concerning the position of the state, protection of equality, land ownership, status of indigenous people and labor regulation. The authors argue that the socialist principles of social policy remained actual after adoption of the current Constitution of 1993, based on an economically neoliberal and politically conservative model, as well as in the course of its later interpretation by the Peruvian Constitutional Court. The article gives the explanations and proves of such conclusion from the legal acts of Peru. Tomáš Gábriš, a scholar from Slovakia, found the legacy of socialist recognition of the principle of nations’ self-determination in obtaining independence of Slovak republic in the early 1990s. Investigating the history of position of Slovakia within the united Czechoslovakia, author makes analysis of the concept of colonialism in socialist legal and political theory and concludes that today position of this republic goes back to the socialist constitutional system. The socialist legacy in Asia is inquired by Pui-Yin Lo from Hong Kong, who add- ressed the complicated situation of combining socialist foundations of China’s constitutional system and capitalist economic order in Hong Kong and Macao within the notion of “One Country, Two Systems.” From his analysis, the author concludes that socialist principles and values prevail in the legal and political order of Hong Kong and Macao, safeguarding China’s sovereignty, security and development interests. Therefore, the formal preservation of capitalism does not suppose or lead to a capitalist constitutional structure, which has remained socialist. Jane Henderson of King’s College London presented an analysis of the wording of the basic laws (constitutions and charters) of Russia’s regions (the subjects of the Russian Federation), searching for legacies of socialist terminology in these laws. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 7
The outcome of the research showed there were only a few situations where the regional constitutions and charters retained the language of the socialist past, for example in retaining Soviet names of some state authorities. The main substantive issue found by Professor Henderson of a socialist legacy in the federal subjects’ constitutions and charters is the lack of any mechanism for their safeguarding – namely their own constitutional or charter court. These have existed in only minority of federal subjects and are due to be disbanded in the coming years, before 2023. The existence of these courts gave strong support to the rule of law principle, thus their dissolution may be evaluated as mimicking socialist times, when there was no judicial structure to oversee conformity to constitutionality. Guest editors express the deep gratitude to all contributors of this Special Issue, who supported the idea and prepared the materials, giving a number of very different dimensions of the socialist legacies in the contemporary constitutions and do hope that this research will continue. ARTICLES
SOCIALIST CONSTITUTIONAL LEGACIES
SERGEI BELOV, Saint Petersburg State University (Saint Petersburg, Russia)
WILLIAM PARTLETT, University of Melbourne (Melbourne, Australia)
ALEXANDRA TROITSKAYA, Lomonosov Moscow State University (Moscow, Russia)
https://doi.org/10.17589/2309-8678-2021-9-2-8-25
With the end of the Cold War, many assumed that socialism, together with the specific constitutional values and political structures was dead (or dying). This article will challenge these assumptions. Post-Cold War reality did not, however, follow these assumptions. Some countries, especially in Asia, continue to adhere to socialist constitutional approaches. Some cannot fully overcome their socialist legacy. And still others include socialist values in their constitutions and practice. These values and ideas warrant study. Most notably, socialism carries with it a certain set of values and, consequently, a corresponding pressure on legal institutions. The authors, guest editors of this special issue of the Russian Law Journal on the socialist legacies in the world constitutions, outline a general approach for the study of socialist constitutional legacies. The article therefore addresses (a) the methodology of socialist constitutional legacies analysis, (b) the core values of the socialist constitutions and (c) ways in which socialist constitutional ideas and concepts can be combined with the principles of constitutionalism. This analysis raises a number of important – but under-researched questions. One is the extent to which these socialist ideas or concepts are actually socialist. Another is the extent to which these ideas can be included in constitutional discourse. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 9
Keywords: socialism; socialist law; post-socialist constitutions; comparative constitutional law; constitutional structure; transformative constitutionalism; comparative methodology.
Recommended citation: Sergei Belov et al., Socialist Constitutional Legacies, 9(2) Russian Law Journal 8–25 (2021).
Table of Contents
Introduction 1. Methodology of Socialist Constitutional Law Studies 2. Socialist Constitutional Values 2.1. The State and the Individual 2.2. Constitutional Design and the Proper Organization of the State 3. The Possibility of a Synthesis? Conclusion
Introduction
With the end of the Cold War, many assumed that socialism was dead (or dying), at least as a paradigm of social and political structure, promoted as an alternative to the Western democracy. A state-directed, command economy had lost the global competition with market economies; a centralized “people’s democracy” would be replaced by a Western-style “bourgeois” democracy. This was part of a greater set of assumptions about the end of history in the wake of the end of the Cold War.1 Post-Cold War reality did not, however, follow these assumptions. Many countries – particularly in Asia – are still committed to socialism. Other countries that were formerly socialist still adhere to some of the values of socialism. Finally, some of the values widely associated with socialism have important legacies in non-socialist societies today. These values and ideas warrant study. Most notably, socialism carries with it a certain set of values and, consequently, a corresponding pressure on legal institutions. In fact, the social and legal orders of many constitutions in the world are the result of social notions, concepts and ideas that stem in part from the socialist world. Some of them are obviously influential today, others only implicitly left their marks, though displaying of them could show social systems in various dimensions and in dynamic. In this interplay, socialist legal ideas continue to exert influence.T he
1 Francis Fukuyama, The End of History, 16 National Interest 3 (1989). Russian Law Journal Volume IX (2021) Issue 2 10 socialist legal system comprises an important part of the legal map of the world. Its existence – both as a historical fact and ongoing practice – raises questions concerning its specific features and its impact on modern states.T he nature of this socialist system of law is often debated; however, we argue that it is a special type, essentially different from the others, in technical as well as in ideological characteristics.2 For comparative constitutional law, socialist constitutional law remains an important topic for expanding the geography of research. The constitutional systems of the socialist and especially post-socialist world are frequently ignored in textbooks and studies, even in those specifically devoted to legal families and traditions.3 Many casebooks include a minimum of materials for these countries4 or do without them at all.5 The key principles of socialist constitutions remain a gap in comparative constitutional studies. These constitutions should be studied in a way that are as free from ideological prejudices and the preconceptions associated with specific political traditions. Embracing the diversity of global experience can also be defended at the philosophical level: it is a question of pluralistic principles of recognizing the existence of various communities, and the absence of pluralism deprives comparative legal studies of epistemological validity.6 Hence, the idea of “equal discursive dignity to non-Euro-American traditions” requires further development.7 This article will seek to understand socialist constitutions by looking to how and why it should be studied, the key values it includes, and how it can helpfully contribute to ongoing constitutional discourse across the world.
1. Methodology of Socialist Constitutional Law Studies
Given the unique nature of the socialist legal system and its continuing influence on other systems, several preliminary methodological considerations should be made. The assessment of legal institutions should attempt to be as unbiased as possible. Constitutional law should not be bound by rigid ideological constructions that limit the questions we ask and proclaim the unconditional advantages of one
2 William Partlett & Eric C. Ip, Is Socialist Law Really Dead?, 48(2) N.Y.U. J. Int’l L. & Politics 463 (2016). 3 on the problem of a set of systems to study see, e.g., Peter de Cruz, Comparative Law in a Changing World X (3rd ed. 2008). 4 See Norman Dorsen et al., Comparative Constitutionalism: Cases and Materials (2010); Ugo A. Mattei et al., Schlesinger’s Comparative Law: Cases – Text – Materials (7th ed. 2009). An exception is provided by works devoted to certain regions, see, e.g., Wen-Chen Chang et al., Constitutionalism in Asia: Cases and Materials (2014) – this book reflects different agendas, including socialist. 5 See Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (2006). 6 See Pierre Legrand, Comparative Legal Studies and the Matter of Authenticity, 2(1) J. Comp. L. 365, 369 (2006). 7 upendra Baxi, The Colonialist Heritage in Comparative Legal Studies: Traditions and Transitions 46, 50 (Pierre Legrand & Roderick Munday eds., 2003). SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 11 system over others. Constitutionalism is not a project of converging toward one optimum text or set of best practices. The principles that underpin constitutionalism such as the separation of powers and the rule of law can advance a wide range of values or goals (including an effective state focused on collective well-being).8 Scholarly work therefore should seek to assume as politically neutral a position as possible to ensure an unprejudiced assessment of the history of success and failures in the constitutional development of countries with different legal systems.9 This research approach should instead seek to understand the particular requirements and contributions of different contexts. This pluralistic approach to research opens the way for improving the typologies of constitutional institutions, building theories explaining the reasons for choosing a particular policy by certain actors and forming normative projects for the future on this basis. The implementation of constitutional norms depends on a number of conditions and context, and the attempt to trace a socialist trajectory contributes to a better understanding of these conditions for some countries. Studying this socialist heritage also requires attention to several aspects. First of all, as will be described in more detail in the next section, socialist constitutions are not neutral or strictly instrumental; socialism entails a commitment to a particular set of values. This poses challenges to the concept of research neutrality and makes it difficult to reject moral assessments completely.10 The category of justice directly invites evaluative judgments which are often included in the comparative research framework, all the more so considering the generally recognized pragmatic goal (the improvement of norms, practices, arguments, etc.) of the latter. One system should not be assessed from the standpoint of another, but it is often difficult to exclude the researcher’s worldview and her manner of defining the theoretical meaning of the grid of concepts that are used. It might be possible to find “ideal” (in the Weberian sense) types and ideologically uncolored categories – such as forms of ownership, restrictions on human rights, principles of constitutional order. However, the question remains whether, in this case, there will be a complete picture of the objects under investigation and how they are adapted to a particular context. In any case, the fact that the researcher’s worldview is a part of the research should be reflected and accounted for. This positionality of the research will affect the posing of questions as well as the promotion of hypotheses and will therefore help to determine the results to which she comes.
8 nick W. Barber, Principles of Constitutionalism (2018). 9 on the problem of studying other countries from the standpoint of one’s own value attitudes see, e.g., David Fontana, The Rise and Fall of Comparative Constitutional Law in the Postwar Era, 36(1) Yale J. Int’l L. 2, 22–23 (2011). 10 o n the role of neutral concepts in comparative study see Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law 10 (1998). However, the research area (constitutional law) matters in this context. Russian Law Journal Volume IX (2021) Issue 2 12
The focus on socialist law allows us to identify at least three types of countries. First, we can study socialist constitutional law in the remaining socialist states.11 Second, we can understand post-socialist countries, where the socialist “underside” is noticeable in many modern processes, despite the disintegration of formal adherence to socialism. Here it is necessary to distinguish the following: the reaction to socialism in the form of emphatically new principles of the constitutional order; the unobvious reproduction of previous patterns in political processes; and the undisguised preservation of the consequences of choices made during the socialist period, although it does not necessarily reflect a specific socialist ideology. Third, we can better understand non-socialist states that include provisions in their constitutions, which may be not directly borrowed, but reflect values or ideas from the socialist system (the stressed role of labor, social justice and solidarity, overcoming poverty). The latter are the most complicated object of analysis, because we have to distinguish the values, ideas and principles that are rooted in the socialist ideology from that are based on alternative theories and ideologies (e.g. Confucianism). This purpose requires not to judge on the legal texts only, but to study constitutions on the basis of their historical and ideological background. Correspondingly, the choice of objects of research deserves special attention. Most often, the starting point is the text of the constitution. However, the “socialist legacy” is often not found in the “black letter” of constitutions and instead requires studying the implementation (or non-implementation) of norms. With regard to many post-socialist constructions, the matter is complicated by the closure of their true meanings and by putting forward imitative mechanisms. For this reason, referring only to the text of the constitution may be insufficient and may even lead to false conclusions. Study therefore requires that the texts “be seen in their political context and in the light of legislation and constitutional interpretation by political institutions and the courts.”12 In a broader interpretation, there is the need to search for information on various legal formants, including not only normative legal acts and judicial decisions, but also a doctrine, as well as subtle intellectual and emotional forms, summarizing the law “in the text,” “in action,” and “in mentality.” The comparison of different systems and especially work with socialist “transplants” requires an answer to the question of whether and to what extent the broader political, economic, social context of the operation of legal norms should be taken into account. The problem of “old wine in new bottles” (preservation of the socialist heritage) should be understood in relation to constitutional provisions that are sensitive enough (perhaps, in contrast to the institutions of some other branches of law) to the environment in which they operate. Will the constitution be regarded as a phenomenon strictly legal or also a socio-political and concrete
11 See Ngoc Son Bui, Constitutional Change in the Contemporary Socialist World (2020). 12 monica Claes, Constitutional Law in Elgar Encyclopedia of Comparative Law 189 (Jan M. Smits ed., 2006). SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 13 historical one? The answer changes the “exploring” research potential, as well as the measure of understanding of the impact of the constitutional provisions on the real conditions of public life. Finally, a critical methodological challenge is to determine the extent to which socialist ideas are actually socialist. Many political communities have values that are far from liberal democratic aspirations. Nevertheless, it would be wrong to attribute these ideas simply to socialism. For example, when considering the balance between the interests of the individual and the collective, some civilizations focus on collective interests. However, this choice may be based on a different, “non-socialist” history grounded in religion or tradition. For instance, the ideas of social solidarity can be perceived in states that do not intend to share other socialist values. The rejection of the principles of the organization of power, which are usually associated with constitutionalism in the Western sense, is also not necessarily a part of the socialist ideology. Authoritarian governments existed both before socialism and without socialism. The situation is especially complicated with states that have had experience of “building socialism” in the past. It may seem suitable to explain some of their contemporary political features by an unconquerable socialist experience. But, in reality, the story can be longer and more complex. What elements form the constitutional tradition, and what kind of “pastness” matter and how it manifests itself in the present13 are questions to answer. Therefore, when we try to seek to understand the socialist heritage, it is very important to present the sum of the values that determine this type of legal system, the history of their development and to use the possibilities of detailed analysis in the study of specific countries.
2. Socialist Constitutional Values
To identify socialist constitutional systems, this section will turn to the dominant foundations, values, and principles of socialism and their impact on socialist constitutions. It will describe how socialist constitutions sought to define themselves. In so doing, this section will simply describe these values and ideas without taking a normative position on them.
2.1. The State and the Individual Constitutions play a critical role in defining the relationship between the individual and the state. Socialist constitutions adopted position in opposition to that of written constitutions in the west. Social responsibility vs individual liberty. Collectivism is balanced with individualism in every society in different ways. Socialism sought to move away from placing a central
13 on the relationship between tradition and time (and on the fact that the socialist tradition itself was of rapid formation) see Patrick H. Glenn, Legal Traditions of the World 5–13 (2014). Russian Law Journal Volume IX (2021) Issue 2 14 value on the liberty of the individual and the minimum invasion of society or the state into his or her freedom. Instead, socialism favored social integrity, the mutual responsibility of individuals to society, and minimum individual responsibility for own wellness. It therefore stressed how the whole society or separate collectives embody the highest value, and how the interests of the whole prevail over the interests of its parts. In this collectivist approach, each person as well as the entire community prioritize care about the common good over personal benefits. Social standards and morality dominate in the motives of social behavior and not the profit motive. This position had an impact on socialist constitutional text and theory. In cons- titutional practice and theory, the judicial protection of individual rights and freedoms has been a central aspect of “western” constitutionalism. In this set of practices, constitutionalism is frequently associated with the value of personal rights and freedoms, which prevail over any competing collectivist interests. This is most clearly found in the practice of American and (west) German constitutionalism since the end of World War II. Socialist constitutions, by contrast,14 seek to transmit the philosophy and values of collectivism into the social, political and legal order. Socialist constitutions strongly focus on the design of the state, the social structure (which declared to be regulated and constructed by the prescriptions of the constitution), while the position of individuals remained to be a secondary matter for regulation. In the regulation of the position of individuals, individual rights were placed alongside duties, and both were of the same legal nature and importance. While some liberal, western constitutions recognize rights and liberties as inalienable ones drawn from natural law, socialist rights are established depending on social circumstances (rights are determined by socio-economic reality, the character of political order, level of democracy and culture)15 in favor of common interests16 and providing functions of social institutions.17 A person has freedom within the social environment, i.e. in that
14 as examples – the Czechoslovakia Constitution of 1960, Poland Constitution of 1952, Hungary Constitution of 1949 (amended in 1972), Bulgaria Constitution of 1971, USSR Constitution of 1977. 15 Чхиквадзе В.М., Лукашева Е.А. Социалистическая концепция прав человека [Viktor M. Chkhikh- vadze & Elena A. Lukasheva, Socialist Concept of Human Rights] 3, 6–7, 32 & others (1986). 16 Советское конституционное право [Soviet Constitutional Law] 208 (Sofia I. Rusinova & Vasiliy A. Rianzhin eds., 1975). 17 Constitution of the USSR of 1977, Art. 50: “In accordance with the interests of the people and for the purposes strengthening and developing the socialist system
18 Constitution of the USSR of 1977, Art. 39: “The use of rights and freedoms by citizens should not cause damage to the interests of society and the state, the rights of other citizens.” 19 Constitution of the USSR of 1977, Art. 59: “The exercise of rights and freedoms is inseparable from fulfillment by a citizen of his duties.” 20 Constitution of the USSR of 1977, Ch. 7. But see the Chinese Constitution which does the mention the individual rights first. 21 Protected in the Hungary Constitution together with “physical integrity and health” (para. 57). 22 the Constitution of the German Democratic Republic of 1949 opened the bill of rights with political rights, established protection of human dignity as a duty of the state and the right to travel. Russian Law Journal Volume IX (2021) Issue 2 16 and Cultural Rights. In this Cold War dichotomy, the socialist world and the West accepted two different types of rights.23 In the western approach individual rights are legally justiciable and are therefore a matter for legal action and judicial protection. In the socialist concept, by contrast, individual interests become rights when they are provided with actual and real (i.e. factual and economic) conditions of realization. Most of rights were seen through these lens, focusing on “positive” side (what is quite logical in terms of rights mostly considered not as freedoms, but as social privileges) – the actual possibility of the state to provide them. The socialist constitutions did not guarantee the right to travel not only because of the need to control migration in state-controlled economy, but also because of no certainty that the state could provide the right with necessary means of transport – roads, airlines, cars, etc. These kinds of rights guaranteed in the USSR constitutions increased: the right to education appeared in 1936, the right to dwelling and healthcare – in 1977, according to the economic possibility of the state to support these rights. The material background together with ideological control stood behind the socialist concept of individual freedoms: for their recognition, they needed to have economic ground: i.e. the state did not guarantee the freedom of speech, as mass media depend on the sources of their funding – if this is the state, media provides the state ideology. There is no freedom of speech if there is no real chance to publish an opinion contradicting the interests of the state within the state-command economy, no freedom of travel if there is no money to go, no right to be elected if there are no means (including financial resources) for promotion and advertising of the candidate. Socialist tradition focuses on socio-economic rights arguing that an individual mostly and critically needs a particular standard of welfare: labor as source to earn for life; education for a better labor and social position; rest and leisure to recondition; social security as the social guarantee in the situation of illness, retirement or the incapacity to work, pregnancy and child care; medical help for health care. These are the basic needs of a person and if one could survive without political freedoms, there is no way to ignore these vital interests. Thus, these economic rights – and not the political and personal rights – are the critical minimum for a person. Thus, it is acceptable to sacrifice these rights for the interests of welfare.
2.2. Constitutional Design and the Proper Organization of the State Constitutions are first and foremost about the proper organization of the institutions of the state. Socialism took a different approach to the state; this different approach was reflected in the constitutional organization of the state. Solidarity vs competition. In the socialist worldview, solidarity was placed in oppo- sition to social or political competition (one of the basic ideas of constitutionalism).
23 Hector Gros Espiell, The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches in Human Rights Thirty Years After the Universal Declaration 41 (Bertrand G. Ramcharan ed., 1979). SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 17
The concept of social solidarity is close to the idea of social responsibility, though it addresses other individuals than entire community. Socialist constitutions therefore regulate “healthy” competition both in economic (market economy) and political (pluralism of political parties and their political programs, ideas and ideology) spheres. The example of contemporary China shows that in the socialist tradition, the regulation of economic competition is not as crucial as control of political competition. In socialist law, economic and political competition are described as managing competition for a very different ideological reason: to ensure social solidarity or responsibility. Unregulated economic competition, it was thought, causes immoral and unfair distribution of riches within the society, leading to concentration of property in the hands of a community minority. The initial principles of the Socialist system, based on the economic theory of Karl Marx, required the nationalization of means of production and putting the end of exploitation of one man by another, preventing the wealth of one person at the expense of others. Socialism as such does not ban economic competition and does not require state-governed economy, but it bans the co-existence of wealth and poverty, presuming that one causes the other. Within a market economy, it is difficult to prevent a disproportional distribution of the property that is why the administrative regulation and management appears in the economy. The practice of socialist countries demonstrated that this type of economy has low effectiveness, and in today’s world, we can find only a few examples of inheritance of the principles of socialist economy, especially in the constitutions. This socialist approach requires the constitutional declaring “forms of property,” which is not legal category but a notion of political economy. The main and leading form of property is socialist property, divided in two: state (all-people’s) and cooperatives’ property. State (communal) property is the main and default form, while personal property could be based only on labor incomes along with the constitution describing what can belong to individuals (items of household and personal consumption, dwelling house and labor savings). The negation of political competition has other roots. It also reflects a specific feature of culture, which could also appear in many countries, which did not belong to the socialist tradition, namely the principle impossibility of more than one right and proper decisions or response to a political question. The space for social debates on political matters is not as wide as in societies where the competition of political alternatives generates new political programs and ideas. This kind of political culture makes the transition of the state power from one person to another very difficult (while there are no way to replace one governing party with another). For instance, the transition of powers is especially difficult for centralized presidential systems. Friendly people’s state vs Leviathan. Socialist ideology took a very different conception of the state in comparison with that of the west. The socialist concept of social order did not require shackles or limitations on the state. Underlying this was a positive view of the state as the representation of the people. There were a number of formal signs and suggestions. For example, in a socialist state there were no police, Russian Law Journal Volume IX (2021) Issue 2 18 but militia – this term points that it is not an organ of state coercion, but structure of providing public security by the people themselves. Furthermore, in a socialist state there was no clear difference between public authorities and other organization (like professional unions, the Communist party, etc.): e.g. both could issue binding rules and norms. Further, in the west, public authorities are to be under effective control of the society to prevent the misuse of their power. Socialist ideas of a “people’s” state presumes that this kind of state does not protect interests of one economic class against interests of other classes, therefore misuse of the power is excluded, while a misuse of certain officials could be prevented through centralized control within the system of public bodies. Therefore, there is no necessity to establish through the constitution control of the people over the government.24 In the legal system in general and in public law (including the Constitution) this meant no legal guarantee of protection against an arbitrary execution of state power because in the socialist concept there were no need of this. One of the clear consequences is the lack of need to apply the separation of powers principle, as there is no threat of the misuse of powers. Another practical consequence of this approach – that the matter of the constitutional regulation is not the design of political power, but the rules of organization for all social spheres – economy, culture, education, science, “social development,” national defense and foreign policy. Official state policy was a matter for regulation in constitution, because it was not a subject for determination by results of elections, as is usual in the democratic world. In this conception of the state, therefore, the Communist Party and professional unions25 express the public interests of the entire Socialist society, because (unlike in a capitalist society) there are no classes, no economic and therefore political contradictions and collisions of interests. Therefore other organizations, established by individuals has no comparable place in the political system: they cannot pretend to take part in execution of state power, though they can play a role of arranging a social activity (like sports, philatelist and other associations of this kind) and even represent political interests (labor collectives, collective farms, consumers’ cooperatives). Finally, in socialist theory, the state plays a key role in expression of the interests and needs of the society and this point has far-reaching consequences, namely a positivist (i.e. originated from the will of the state) view on law and on the human rights. The individual interests are subordinated to the common interests of the society, therefore there is only one way to defend individual rights – to persuade the state that this is the interests of the state to recognize and legally protect individual rights. The lack of rule of law (replaced with socialist legality) caused the uncertainty of the scope of collective interests. The law itself in the socialist tradition played not the role of protection of individual interests, but the role of instrument of social
24 ngoc Son Bui, Globalization of Constitutional Identity, 26(3) Wash. Int’l L.J. 463, 476 (2017). 25 Soviet Constitutional Law, supra note 16, at 108–109. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 19 management and protection of public interests, using the specific features of law – at least formal definiteness and enforceability.26 Effect on constitutions. This positive approach to the state and the focus on solidarity have important ramifications for socialist constitutions. Socialist constitutions reflect this approach by defining the main directions of state policies to narrow the questions for debates on elections and in parliament. In the radical version, this means declaring one party to express the will and interests of the whole society. When several parties are allowed to compete for seats in the parliament, this political struggle means rather fight of persons than competition of ideas and programs, in spite of proportional representation or other attributes of political rivalry. On the institutional level, the focus on solidarity instead of competition means that the socialist understanding of separation of powers was only as design principle and idea of distribution of functions, but not as checks and balances of one branch over others. This emphasis on centralism manifested itself in a constitutional design where all formal constitutional power was concentrated in legislatures that were dominated by an executive committee called the “Presidium.”27 The presidium dominated the legislative branch, ensuring that policy formulated by the Communist Party was implemented. This system rejected the principle of judicial review over the constitutionality of legislation as incompatible with the principles of democratic centralism which prioritized the supremacy of legislature.28 This was thought to reflect the idea that “the legislature is conceived to be the supreme expression of the will of the people and beyond the reach of judicial restraint.”29
3. The Possibility of a Synthesis?
Socialist constitutions defined themselves in opposition to non-socialist ones. This opposition was grounded in the Cold War ideological struggle between the United States and the Soviet Union. In particular, the Cold War posed the non- socialist, liberal constitutions of “the West” against the socialist constitutions of “the East.” And the claims made were exclusive – that is, much as individual countries were
26 thiem H. Bui, Deconstructing the “Socialist” Rule of Law in Vietnam: The Changing Discourse on Human Rights in Vietnam’s Constitutional Reform Process, 36(1) Contemp. Southeast Asia 77, 82 ff. (2014). 27 Soviet Constitution of 1936, Art. 49 (describing the vast powers of the Presidium). See William Partlett & Mikhail Krasnov, Russia’s Non-Transformative Constitutional Foundation, 15(4) Eur. Const. Law Rev. 644 (2019). 28 Similar approaches alongside with idea of necessity to introduce specific constitutional review mechanisms still exist in Vietnam, Laos and China. Refer further to Keith J. Hand, An Assessment of Socialist Constitutional Supervision Models and Prospects for a Constitutional Supervision Committee in China: The Constitution as Commander? in China’s Socialist Rule of Law Reforms Under Xi Jinping 30 (John Garrick & Yan Ch. Bennett eds., 2016); Socialist Law in Socialist East Asia (Fu Hualing et al. eds., 2018). 29 John N. Hazard et al., The Soviet Legal System: The Law in the 1980’s 320 (1984). Russian Law Journal Volume IX (2021) Issue 2 20 often forced to take sides in the Cold War, a constitution had to choose between protecting the individual or the state. In this Cold-War construction, non-socialist, western constitutions were described as only focused on a negative theory of limited government and therefore placed constraints on the state’s exercise of political power.30 These constraints on power – implemented by courts in the post-WWII period (particularly in the United States and West Germany) – were then described as preventing the state from abusing its powers and are therefore aimed at preserving individual liberty and rights. In this conception, legitimate constitutional action lies in protecting individuals and in preserving the private social ordering but does not extend to a social state or liberal egalitarian measures, particularly those aimed at regulating redistributing wealth and overcoming poverty.31 Its central critique of socialist constitutions is that they ultimately lead to centralized, authoritarian dictatorship. Socialist constitutions of the East, by contrast, were thought to be solely gro-unded on a positive theory of “democratic centralism” in which state power is centralized in order to better advance the collective interests of the people (see previous section). This executive centralism was viewed as necessary for allowing the state to effectively make the decisions necessary for the “material well-being of the living conditions of the local people.”32 This centralized structure therefore allows the vanguard communist party to formulate policy according to socialist ideology, centralization and concentration of powers leads to authoritarianism, degrading to tyranny and dictatorship. Its central critique of non-socialist constitutions is that they ultimately enable class domination and of capitalist economic power by failing to attack economic inequality.
Table 1. Cold-war binary
Non-socialist constitutions Socialist constitutions Central state- Separation of powers; Democratic centralism; building checks and balances centralization of power in the principle legislative branch Central goal The preservation of Empowering the state to provide individual liberty and rights collective well-being such (negative rights) as overcoming poverty and providing security (positive rights) Critique of Lead to dictatorship or Lead to continued economic the other totalitarianism poverty/exploitation
30 Barber 2018, at 2–3. 31 Id. 32 Bui 2020, at 20. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 21
The legacy of this opposition between socialist and non-socialist constitutions has lingered in constitutional theory after the Cold War. In the socialist world, for instance, centralism is still justified as the only way to ensure the achievement of collective goals.33 Furthermore, in parts of the post-socialist world, the centralization of constitutional power continues to be justified as the only way to achieve collective, developmental goals. A notable example is the centralization of power in the office of the president in Eurasia and Africa as the only way to ensure strong government.34 However, the opposition of political structures need not always correspond to the values and goals of socialist and non-socialist constitutions. Most notably, constitutional theorists have recently argued that non-socialist constitutions, which divide and limit state power, are not just about protecting individual liberty, but could be about common good – well-being of the people. The division of state power is also a critical part of enabling an effective state that can provide for the material. Vicki C. Jackson has argued that
the purpose of a domestic constitution is to design and enable not only legitimate, but also effective government, through provisions specifying lawmaking power, powers of execution and administration of the laws, and providing for control over the use of coercive force.35
Further, Nick W. Barber has more recently stressed that the principles of consti- tutionalism – including the separation of powers – are not just a way of ensuring “limited government.”36 Instead, constitutionalism itself plays an important role in creating an effective state. Barber describes how key constitutional principles ultimately seek to ensure that the state “possesses a set of institutions that are able to act” in advancing the general well-being of the people.37 The combination that focuses on collective goals but also divides power can be found in constitutional practice. For instance, during the Cold War, the drafters of the Indian Constitution worked to create a constitution that would both divide power as well as overcome economic poverty. To this end, they created a constitutional system of separation of powers system that was grounded on checks and balances. At the same time, they also relied heavily on socialist practice in inserting directive principles into the constitutional text that also sought to advance particular developmental goals for the state. A reflection of this blending of socialist and non-
33 Bui 2020, at 20. 34 William Partlett, Crown-Presidentialism, Int. J. Const. Law (accepted for publication and forthcoming 2021). 35 vicki C. Jackson, Constitutional Engagement in a Transnational Era 259 (2010). 36 Barber 2018, at 2 (calling this the idea of “negative constitutionalism”). 37 Id. at 8. Russian Law Journal Volume IX (2021) Issue 2 22 socialist ideas is the Forty-Second Amendment to the Indian Constitution which inserted “socialist” into the description of India as a “secular democratic republic.” Moreover, the Australian Constitution, adopted in 1901, before the first socialist constitution and heavily influenced by the constitutions of the United States and the United Kingdom, does not contain any individual rights provisions. Instead, the Australian drafters consciously rejected the inclusion of judicially enforceable rights into the constitution, reserving the core aims for the collective goals. For instance, they gave the federal government the power to make laws with respect to the “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state.” This combination of socialist-style collective goals and western-style political institutional structure appeared in the last years of the USSR. Constitutional judicial review, had been rejected for many years, was established in socialist Poland in 198238 and in the USSR 198839. Still being a socialist state in 1990 the Russian Soviet Federative Socialist Republic recognized the principle of separation of powers40. In these contexts, this limitation on legislative and executive power was justified as contributing to a more effective state. In particular, it was justified as contributing to the supremacy of statute. The mixture of socialist values and non-socialist institutions in constitutions requires further study to determine the extent to which of these different values and approaches can be combined. Clearly some are not compatible. Constitutionalism’s institutional focus on the separation of powers is not compatible with socialism’s institutional commitment to centralism. But one area where we can see an attempt to combine these two approaches is in “transformative” or “new constitutionalism.” This new wave of constitutionalism – seen most clearly in Colombia and South Africa – further combines the separation of powers design with a set of constitutional values committed to the implementation of positive, socio-economic rights. In this way, it draws on the hybrid approach taken in the Indian Constitution. Transformative constitutionalism’s combination of socialist values and non- socialist constitutional structure reacts to two problems in modern constitutional practice. First, it reacts to the weakness of non-socialist constitutions in addressing the collective problems of economic or social inequality. For instance, some have
38 dziennik Ustaw z 1982 r. N 11, poz. 83 (Feb. 7, 2021), available at http://isap.sejm.gov.pl/isap.nsf/ DocDetails.xsp?id=WDU19820110083. 39 Закон СССР от 1 декабря 1988 г. № 9853-XI // Ведомости Верховного Совета СССР. 1988. № 49. Ст. 727 [Law of the USSR of 1 December 1988 No. 9853-XI, Vedomosti Verkhovnogo Soveta SSSR, 1988, No. 49, Art. 727]. 40 Декларация о государственном суверенитете РСФСР от 12 июня 1990 г. // Ведомости Съезда Народных Депутатов РСФСР и Верховного Совета РСФСР. 1990. № 2. Ст. 22 [Declaration of State Sovereignty of the RSFSR of 12 June 1990, Vedomosti S’ezda Narodnykh Deputatov RSFSR i Verkhovnogo Soveta RSFSR, 1990, No. 2. Art. 22]. SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 23 argued that the focus on individual rights has arguably contributed to growing economic inequality that is helping to fuel significant problems in governance in many established western democracies.41 The socialist tradition and its positive obligations on the state offer insights into how to use constitutions to overcome material inequality and therefore advance general social welfare. Second, transformative constitutionalism also seeks to avoid the dangers of centralized power for the creation of effective state governance.A s described above, socialist constitutions intentionally centralize formal power in order to allow one party to formulate policy. This authoritarian use of constitutional law often descends into personalized governance that concentrates power in the hands of one individual. This personalization of power can in turn weaken institutional effectiveness.42 A cons- titutional separation of powers and checks and balances can help to avoid these problems of personalization. Moreover, it might be the case that the separation of powers is a more effective way of building a state that has responsive institutions which can advance collective well-being. For instance, independent institutions can help to root out corruption. The innovations of transformative constitutionalism show how moving beyond Cold War binaries can open new possibilities in constitutional design and practice. In particular, it raises the possibility that constitutions can be grounded on constitutional principles such as the separation of powers, the rule of law while also focusing on enabling the state to facilitate collective transformation while also avoiding the pitfalls of centralized and personalized leadership. This is a reminder that constitutionalism is not a convergence project with the most influential constitutional systems. It is instead a debate about how best to adapt constitutional principles to advance both individual rights and the collective well-being of the people.
Conclusion
This paper’s brief overview of socialist concepts and values suggests a new perspective for comparative constitutional research. Prior approaches which condemn socialist constitutional systems as out of date or irrelevant to ongoing constitutional developments should be revised. Instead, the authors show that collective socialist values such as overcoming poverty or environmental problems can be a part of very different constitutional systems, both socialist, post-socialist and non-socialist. Moreover, these values can exist in the constitutions alien to socialist political structures. This conclusion opens an important debate about the role of socialist values or ideas in theoretical constitutional discourse.
41 Samuel Moyne, Not Enough: Human Rights in an Unequal World (2018). 42 Barbara Geddes et al., How Dictatorships Work (2018) (arguing that personalized dictatorships are less stable); Erica Frantz, Authoritarianism: What Everyone Needs to Know (2018). Russian Law Journal Volume IX (2021) Issue 2 24
This debate focuses attention squarely on which socialist values can be usefully included in the canon of constitutionalism and which cannot. Socialist constitutional design and its structural centralism are clearly not compatible with constitutionalism. But other socialist values potentially are. For instance, transformative constitutionalism opens the possibility that constitutions can both seek to advance collective goals while also avoiding the formal centralization of power. Transformative constitutionalism is only the beginning of this overall critical project. It is our hope that this article will provide some further inspiration for this project.
References
Barber N.W. Principles of Constitutionalism (2018). https://doi.org/10.1093/oso/ 9780198808145.001.0001 Baxi U. The Colonialist Heritage in Comparative Legal Studies: Traditions and Transitions 46 (Pierre Legrand & Roderick Munday eds., 2003). https://doi.org/10.1017/ cbo9780511522260.003 Bui N.S. Constitutional Change in the Contemporary Socialist World (2020). https:// doi.org/10.1093/oso/9780198851349.001.0001 Bui N.S. Globalization of Constitutional Identity, 26(3) Wash. Int’l L.J. 463 (2017). Bui Th.H. Deconstructing the “Socialist” Rule of Law in Vietnam: The Changing Discourse on Human Rights in Vietnam’s Constitutional Reform Process, 36(1) Contemp. Southeast Asia 77 (2014). https://doi.org/10.1355/cs36-1d Chang W.-Ch. et al. Constitutionalism in Asia: Cases and Materials (2014). https:// doi.org/10.5040/9781849469869 Claes M. Constitutional Law in Elgar Encyclopedia of Comparative Law 189 (Jan M. Smits ed., 2006). https://doi.org/10.4337/9781847200204.00023 de Cruz P. Comparative Law in a Changing World (3rd ed. 2008). Dorsen N. et al. Comparative Constitutionalism: Cases and Materials (2010). Fontana D. The Rise and Fall of Comparative Constitutional Law in the Postwar Era, 36(1) Yale J. Int’l L. 2 (2011). Frantz E. Authoritarianism: What Everyone Needs to Know (2018). https://doi. org/10.1093/wentk/9780190880194.001.0001 Geddes B. et al. How Dictatorships Work (2018). https://doi.org/10.1017/97813 16336182 Glenn H.P. Legal Traditions of the World (2014). https://doi.org/10.1093/he/ 9780199669837.001.0001 Gros Espiell H. The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches in Human Rights Thirty Years After the Universal Declaration 41 (Bertrand G. Ramcharan ed., 1979). Hand K.J. An Assessment of Socialist Constitutional Supervision Models and Prospects for a Constitutional Supervision Committee in China: The Constitution as Commander? SERGEI BELOV, WILLIAM PARTLETT, ALEXANDRA TROITSKAYA 25 in China’s Socialist Rule of Law Reforms Under Xi Jinping 30 (John Garrick & Yan Ch. Bennett eds., 2016). https://doi.org/10.4324/9781315666129-3 Hazard J.N. et al. The Soviet Legal System: The Law in the 1980’s (1984). Jackson V.C. & Tushnet M. Comparative Constitutional Law (2006). Jackson V.C. Constitutional Engagement in a Transnational Era (2010). https://doi. org/10.1093/acprof:oso/9780195333442.001.0001 Legrand P. Comparative Legal Studies and the Matter of Authenticity, 2(1) J. Comp. L. 365 (2006). Mattei U.A. et al. Schlesinger’s Comparative Law: Cases – Text – Materials (7th ed. 2009). Moyne S. Not Enough: Human Rights in an Unequal World (2018). Partlett W. & Ip E.C. Is Socialist Law Really Dead?, 48(2) N.Y.U. J. Int’l L. & Politics 463 (2016). Partlett W. & Krasnov M. Russia’s Non-Transformative Constitutional Foundation, 15(4) Eur. Const. Law Rev. 644 (2019). https://doi.org/10.1017/s1574019619000403 Partlett W. Crown-Presidentialism, Int. J. Const. Law (accepted for publication and forthcoming 2021). Socialist Law in Socialist East Asia (Fu Hualing et al. eds., 2018). https://doi.org/10. 1017/9781108347822 Zweigert K. & Kötz H. An Introduction to Comparative Law (1998).
Information about the authors
Sergei Belov (Saint Petersburg, Russia) – Dean, Law Faculty, Saint Petersburg State University (7 22nd Line V.O., Saint Petersburg, 199026, Russia; e-mail: s.a.belov@ spbu.ru).
William Partlett (Melbourne, Australia) – Associate Professor, Melbourne Law School, University of Melbourne (185 Pelham St., Carlton, Victoria, 3065, Australia; e-mail: [email protected]).
Alexandra Troitskaya (Moscow, Russia) – Associate Professor, Law Faculty, Lomonosov Moscow State University (1, Bldg. 13-14 Leninskie Gory, Moscow, 119991, Russia; e-mail: [email protected]). ALL-PERVASIVE LEGACIES OF SOCIALIST CONSTITUTIONALISM? THE CASE OF JUDICIARY
ZDENEK KÜHN, Charles University (Prague, Czech Republic)
https://doi.org/10.17589/2309-8678-2021-9-2-26-43
The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a result of enlargement of the EU, much of the “other Europe” became part of the European Union, it would be too simplistic to assume that, with the fall of the Berlin Wall, the region became part of Western European political and legal landscape. While the books of the old era were discarded, legislation repealed and new institutions created, one should not underestimate the continuing strength of the old values, principles and legal thought in general. After all, the authors of those discarded books remained in the academia, even if they seemingly started to produce – virtually overnight – new works, while defending new values and principles. Alongside with the academics, the entire legal personnel of the old era survived the systemic change, and this contributed to the persisting spirit of old legal culture. That is why the philosophies of the old socialist legal system were able, not only to survive, but to govern a substantial portion of the post-socialist legal and judicial discourse. The deepest layers of the old legal culture are resistant to sudden changes by their very nature. They seldom have a direct connection to the former official political ideology, and they are often clothed in the new legal vocabulary. Furthermore, the most persistent features of socialist legal culture are often those linked to the region’s illiberal pre-socialist past, although substantively modified during the era of socialism. I will show some examples of old socialist concepts which seem to be alive and well in the new legal system. First, I am going to deal with the authoritarian model of judicial process, which appears to prevail in the region of Central and Eastern Europe. The socialist conception of a judicial process continues to haunt the region even several decades after the fall of “existing socialism.” The parties continue to be viewed as passive objects in the post- communist litigation. Second, I am going to explain a specific socialist novelty, the concept of supreme courts’ interpretative statements, legislating from the bench without any real- life case pending before those courts. Last but not least, I will show the gradual decline ZDENEK KÜHN 27 of the activist role of constitutional courts in the region and the return to the tradition of self-restrained judiciary influenced by politics and politicians.
Keywords: post-communism; transition to democracy; constitutional courts; judiciary; judicial process; judicial review; crisis of liberal democracy; illiberalism.
Recommended citation: Zdenek Kühn, All-Pervasive Legacies of Socialist Constitu- tionalism? The Case of Judiciary, 9(2) Russian Law Journal 26–43 (2021).
Table of Contents
1. Overture: The Dreams of Liberal Constitutionalism in the 1990s and the Downfall 2. Authoritarian Understanding of the Judicial Process 3. Supreme Courts’ Interpretative Statements and Guidelines: Their Emergence and Persistence in Central and Eastern Europe 4. Revival of the Concept of Defensive Legalism Conclusion
1. Overture: The Dreams of Liberal Constitutionalism in the 1990s and the Downfall
At first glance, the fall of socialism in Central and Eastern Europe in the late 1980s meant total eradication of the former legal and constitutional values. New constitutions and laws were adopted, old textbooks discarded. Moreover, the collapse of communism in 1989/1990 was accompanied with the rise of the judicial branch, in general, and the creation of new constitutional courts, in particular, in virtually all countries of Central and Eastern Europe. In post-communist Europe, the 1990s saw a shift towards judicialization and the creation of a conflict society.T he judiciary had its old competences restored, including the power to carry out judicial review of administrative acts. Most importantly, however, constitutional courts were established in all post- communist states. Even in those few countries (Poland and former Yugoslavia) where the constitutional courts had existed before the fall of socialism, their role expanded after 1990. The actual functions of these constitutional courts were limited by authoritarian governments prior to 1990, and consequently, they lacked any significant political influence until the fall of the authoritarian regimes. It was only after the collapse of socialist dictatorships that the constitutional courts in Poland1
1 in Poland, the Constitutional Tribunal was created by a law of 1982; it started to operate in 1986. For the description of the Polish Constitutional Tribunal prior to 1990, see Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe 4–13 (2nd ed. 2014). Russian Law Journal Volume IX (2021) Issue 2 28 and in successor states of former Yugoslavia2 started to serve as genuine checks on the government. The post-communist constitutional courts were designed as powerful institutions capable of protecting the rule of law and fundamental rights against the will of the parliamentary majority. Their most important powers include the review of constitu- tionality of the legislation and in some jurisdictions (the successor countries of former Yugoslavia, the Czech Republic, Slovakia, and recently Hungary3) also the review of constitutional conformity of decisions of state authorities, including the courts. Initially, the post-socialist constitutional courts were viewed as successful examples of institutions introducing new conceptions of the rule of law, separation of powers and the notions of liberal democracy. The original practice of constitutional review of the 1990s and early 2000s was linked to judicial activism, unrestrained and seemingly unopposed judge-made law. Constitutional courts of Eastern Europe acted as the agents of a social change towards liberal capitalism in their respective national legal systems.4 Moreover, in some of these systems, they attempted to transform the entire concept of law, Westernize the post-communist application of the law, and teach the new proper methods of approaching its application. They did so by mentoring and criticizing ordinary judges for not taking the Constitution and human rights seriously enough. In this role, the constitutional courts often effectively replaced the legal academia.5 When analyzing the early phase of post-communist constitutional courts in the course of the 1990s, one should not neglect the consensus on liberal constitutionalism prevailing among the elites of post-communist transition. The constitutional courts emphasized the primacy of an individual over the state.6 There was a strong
2 the Federal Constitutional Court of Yugoslavia was established in 1963, along with the state consti- tutional courts of the individual republics. For an early socialist description of those courts, see Dimitrije Kulic, The Constitutional Court of Yugoslavia in the Protection of Basic Human Rights, 11(2) Osgoode Hall L.J. 275 (1973). The Federal Constitutional Court of Yugoslavia disappeared with the disintegration of Yugoslavia and the subsequent violent civil war of the 1990s. 3 in Hungary, the Court was granted the power to review constitutional complaints as late as in 2012, within the new Constitution enacted at the beginning of the Orbán era. See the Constitution of Hungary of 2011 (Feb. 20, 2021), available at http://www.kormany.hu/en/news/the-new-fundamental-law-of- hungary. In Slovakia, the institute of constitutional complaint was introduced in 2001, following the successful Czech example. On Slovakia, see Radoslav Procházka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe 189 ff. (2002). 4 For some early jubilant views, see, e.g., A megtalált alkotmány?: a magyar alapjogi bíráskodás első kilenc éve [The Constitution Found? The First Nine Years of Hungarian Constitutional Review on Fundamental Rights] (Halmai Gábor ed., 2000); Procházka 2002; Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (Wojciech Sadurski ed., 2002). 5 i tried to show this transformative potential of some constitutional courts in Zdenek Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (2011), Ch. 5. 6 e.g. judgment of the Czech Constitutional Court of 18 October 1995, no. Pl. ÚS 26/94. ZDENEK KÜHN 29 consensus that new democratic constitutions should restrain parliamentary majority and the executive branch, and ensure adherence to the state’s basic law through its counter-majoritarian functions. The law and its application were believed to be non-political and to be able to restrain crude politics. The idea of “taking rights seriously” was accepted by the framers of the New Constitutionalism in Central Eastern Europe. The constitutional courts emphasized that they were not neutral in terms of ideology because they stood on the side of liberal democracy. The following judgment of the Czech Constitutional Court can perhaps serve as the best example of these early cases:
Our new Constitution is not founded on value neutrality and is not simply a mere demarcation of institutions and processes; it rather also incorporates into its text certain governing ideas, expressing the fundamental, inviolable values of a democratic society. The Czech Constitution accepts and respects the principle of legality as part of the overall basic outline of the rule of law. That being said, positive law does not link it merely to formal legality; rather, the interpretation and application of legal norms are subordinated to their substantive purpose, the law is qualified by a respect for the basic enacted values of a democratic society, and it also weighs the application of legal norms against these values. This means that although there exists a continuity of “former laws,” there is a discontinuity in values from the “former regime.” […] Whatever the laws of the state are, in a state which is designated as democratic and which proclaims the principle of sovereignty of the people, no regime other than a democratic regime can be considered legitimate. Any sort of monopoly on power, in and of itself, rules out the possibility of democratic legitimacy.7
Constitutional liberalism of the 1990s was linked to the “The End of History” thesis, i.e. the ultimate triumph of liberal capitalism, often presented through its neoliberal array and a plethora of free market policies.8 No one dared to question “the only possible” path to the future. In their neoliberal zealotry, the postcommunist constitutional courts’ case law was often one sided, especially compared to the application of similar principles in Western jurisprudence.9 Moreover, the political elites of the 1990s seemed quite often unaware of the enormous political power vested in the courts exercising constitutional review. The
7 the case regarding the Act on the Lawlessness of the Communist Regime of 21 December 1993, no. Pl. ÚS 19/93. English translation is available at https://www.usoud.cz/en/decisions/19931221-pl-us-1993- lawlessness-1/. 8 adam Sulikowski, Government of Judges and Neoliberal Ideology in Law and Critique in Central Europe: Questioning the Past, Resisting the Present 16 (Rafał Mańko et al. eds., 2016). 9 Cf., for an analysis of the Hungarian Court, Catherine Dupré, Importing the Law in Post-Communist Transi- tions: The Hungarian Constitutional Court and the Right to Human Dignity 126–127 (2003). Russian Law Journal Volume IX (2021) Issue 2 30 concept of law was understood in a nonpolitical way, and the law was viewed as a logical set of rules and principles destined to be used by endowed professionals capable of following the law’s logic. Constitutional courts initially faced little external criticism or opposition to their decision-making, which resulted in a situation described by some scholars as the “liberal government of judges.” The mainstream legal ideology provided a protective veil for the constitutional courts’ activities, concealing even the most radical examples of judicial law-making.10 Although judicial activism was criticized by local legal academia and a majority of ordinary judges, it was relatively easy to downplay that sort of criticism as a reaction of conservative scholarship and judiciary, associated with the former regime.11 These circumstances often shaped the environment for unbound judicial activism of constitutional courts. The President of the Hungarian Constitutional Court in the 1990s Sólyom once (in)famously remarked that the genuine purpose of the Court was to read “the invisible constitution.” 12 Although other constitutional courts were less open about their judicial legislating, judicial activism became a common phenomenon of the 1990s and 2000s. The constitutional courts often styled themselves as the sole and indispensable guardians of the new constitutions, entering the scene as a deus ex machina to settle issues which cannot be decided by other bodies. As a consequence, one of the most fundamental problems which emerged after 1989 was the “over-centralization” of the constitutional review. By this, I mean that the continuing guarantee of the rule of law was entirely centralized and concentrated in the constitutional court, while the powers of the ordinary judiciary were limited accordingly.13 If the constitutional court then gets under control of one political faction, as was the case in the Orbán Hungary after 2010 and in Poland after 2015, the gates for a systemic change are open, while guardians of the constitution are effectively missing. The success of the legal transitions occurring in the 1990s was quite dubious. Although, as a result of enlargement of the EU, much of the “other Europe” became
10 Sulikowski 2016. 11 See Kühn 2011, at 229 (and the sources quoted in fn. 143). 12 See Sólyom’s concurring opinion in the Death Penalty Case, decision 23/1990 of 31 October 1990 (translated in Laszlo Sólyom & Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court 126 (2000)). This conception has been criticized for blatant activism (What is “invisible constitution”; are judges above the lawmakers and are they the only legitimate power to read it?) and neither the Court nor its President has ever used this expression again. Cf. András Sajó, Reading the Invisible Constitution: Judicial Review in Hungary, 15(2) Oxf. J. Leg. Stud. 253 (1995). Cf. also Gábor A. Tóth, Joint Symposium on “Towering Judges”: László Sólyom’s Constitutional Symphony for the Republic of Hungary, I·CONnect, 3 April 2019 (Feb. 20, 2021), available at http://www. iconnectblog.com/2019/04/joint-symposium-on-“towering-judges”:-laszlo-solyom’s-constitutional- symphony-for-the-republic-of-hungary. 13 Cf. Zdenek Kühn, Making Constitutionalism Horizontal: Three Different Central European Strategies in The Constitution in Private Relations: Expanding Constitutionalism 217 (András Sajó & Renáta Uitz eds., 2005). ZDENEK KÜHN 31 part of the European Union, it would be too simplistic to assume that, with the fall of the Berlin Wall, the region became part of Western European political and legal landscape. Alas, the region disappeared from the scrutiny of comparative scholarship. The old “Socialist Legal Family,” which most comparative law treatises had posited, was seemingly replaced by a legal black-hole.14 While the books of the old era were discarded, legislation repealed and new institutions created, we should not underestimate the continuing strength of the old values, principles and legal thought in general. After all, the authors of those discarded books remained in the academia, even if they seemingly started to produce – virtually overnight – new works, while defending new values and principles. Alongside with the academics, the entire legal personnel of the old era survived the systemic change, and this contributed to the persisting spirit of old legal culture. That is why the philosophies of the old socialist legal system were able, not only to survive, but to govern a substantial portion of the post-socialist legal and judicial discourse. The deepest layers of the old legal culture are resistant to sudden changes by their very nature. They seldom have a direct connection to the former official political ideology, and they are often clothed in the new legal vocabulary. Furthermore, the most persistent features of socialist legal culture are often those linked to the region’s illiberal pre-socialist (or, to be more precise, pre-communist) past, although substantively modified during the era of socialism. To provide some examples, one can easily see that many lawyers and members of the public in general tend to overemphasize the importance of legislative enactments in the legal process, and underestimate the significance of their subsequent application by courts and public authorities. In the view of many scholars, legislation means everything and a precedent (case law) nothing. Ironically, this trend has been reinforced by the processes occurring in European integration, with their overproduction of directives and regulations. In the following text, I will show some examples of old socialist concepts which seem to be alive and well in the new legal system. First, I am going to deal with the authoritarian model of judicial process, which appears to prevail in the region of Central and Eastern Europe. The classical civil-law (continental) principle of Iura novit curia – the maxim which tells us that it is the judge who knows the law – was reshaped by socialist legal culture. The socialist conception of a judicial process
14 Cf. Rafał Mańko, The Culture of Private Law in Central Europe After Enlargement: A Polish Perspective, 11(5) Eur. L.J. 527, 547–548 (2005), discussing the fact that the most recent edition of Zweigert and Kötz’ treatise on comparative law simply discarded the Socialist Legal Family “without writing anything in their place.” For more recent elaboration by the same author, see Rafał Mańko, Survival of the Socialist Legal Tradition? A Polish Perspective, 4(2) Comp. L. Rev. 1 (2014) (Feb. 20, 2021), also available at http:// www.comparativelawreview.unipg.it/index.php/comparative/article/view/14/11. Some more recent treatises on comparative law started to take into account Eastern European legal culture again as a distinct entity. See Uwe Kischel, Comparative Law (2019), discussing at length specific features of Central and Eastern European legal systems (at 533–553). Russian Law Journal Volume IX (2021) Issue 2 32 continues to haunt the region even several decades after the fall of “the Soviet form of socialism.” While the parties’ activity and their close collaboration in discussing issues of law with their judges is an important driving force in applying the law in Western Europe, the parties continue to be viewed as passive objects in the post- communist litigation. Second, I am going to explain a specific socialist novelty, the concept of supreme courts’ interpretative statements, legislating from the bench without any real-life case pending before those courts. Last but not least, I will show the gradual decline of the activist role of constitutional courts in the region and the return to the tradition of self-restrained judiciary influenced by politics and politicians.
2. Authoritarian Understanding of the Judicial Process
As a matter of fact, socialist regimes, just like any other dictatorship, necessarily generated an authoritarian understanding of the law. As explained by Professor Siniša Rodin:
Instead of rational discourse that shaped legal and institutional landscape of Europe’s West, the predominant discourse in Central and Eastern Europe was authoritarian. The main characteristic of such authoritarian discourse is the proclamation and imposition of one truth as universal and final. Such discourse was authoritarian since it purported to have a social monopoly over determining the meaning of legal and political language at the top of political hierarchy and communicating it downward. It was, nevertheless, a discourse, since communication of meaning defined in authoritarian way was indispensable to support the claim of universal acceptance, the maintenance of which is a condition of the system’s integrity.15
Authoritarian judicial discourse must be distinguished from authoritative judicial discourse. The judicial discourse of any legal system is inherently authoritative. This is because 1) by definition, courts must rule as if there were only one correct answer to the questions presented to them (the judicial “one right answer” thesis), and 2) judicial decisions are final because of their authority within the judicial and legal system.16 An authoritative judicial discourse does not preclude, but rather presupposes, a pluralism of opinions and the participation of all competent persons
15 Siniša Rodin, Discourse and Authority in European and Post-Communist Legal Culture, 1(1) Croat. Y.B. Eur. L. Pol’y 1, 7–8 (2005) (footnotes omitted). 16 See the chapters in Interpreting Statutes: A Comparative Study (D. Neil MacCormick & Robert S. Summers eds., 1991) (although the degree of the discursive nature of judicial decisions differs, at one pole standing the common law system, and at the other French system, all courts work on the assumption that their decisions are objectively “right”). ZDENEK KÜHN 33 in the legal decision-making process. Plurality of opinions and the fact that the court takes all relevant opinions seriously provide the last-resort decision-maker with the legitimacy to provide the “right” answer, which is a necessary precondition for the discourse to remain authoritative. I believe this argument has been best presented by the United States Supreme Court Associate Justice Robert Jackson. When evaluating judges of (any) supreme court, he famously declared: “We are not final because we are infallible, but we are infallible only because we are final.” 17 In contrast, an authoritarian discourse means something very different, as it lacks any pluralism of opinions. The “right” answer is achieved through a “one-way” process and is backed entirely by an institutional power. Those to whom decisions are addressed cannot participate in finding the “right” answers; instead of being subjects, they are rather objects of authoritarian decision-making. An authoritarian discourse implies that legal meanings are produced from above and the existence of any dispute, questioning, legitimate disagreement, or construction of the law from the bottom up is unthinkable.18 An authoritarian discourse is combined with the maxim of Iura novit curia – the idealistic principle of civil (continental) law that the “judge knows the law” and must apply the appropriate legal rule regardless of whether either party has cited it to the court.19 If taken too seriously and too literally, this principle deeply influences the self-perception of post-socialist judiciary. One of the effects of this principle (Iura novit curia) is that, while the parties before a civil (continental) law court have the duty to deal with questions of fact, they are not obliged to raise questions of law because the court itself is required to do so even without the litigants’ assistance. As a consequence, the pleadings presented to trial courts in most civil-law countries are quite brief, without any major excursus into legal issues; after all, the judge is the one who is supposed to supply the relevant rule. In contrast, judges play a more passive role in systems of common law culture (which is typically more pragmatic), while greater responsibility is placed on the parties, not only to raise questions of fact, but also to argue questions of law. This is so because, when constructing their opinions, Anglo-American judges draw heavily upon the parties’ competing arguments as to the “correct” statement of the law.20 However, the principle that the judge knows the law is not taken literally in Western Europe. Appeals filed in WesternE urope tend to be longer and more elaborate when
17 Brown v. Allen, 344 U.S. 443, at 540 (1953), Justice Jackson concurring. 18 i draw my inspiration from Joseph Vining, The Authoritative and the Authoritarian (1986). 19 Cf., in this regard, e.g., John A. Jolowicz, Da mihi factum dabo tibi jus: A Problem of Demarcation in English and French Law in Multum non multa: Festschrift für Kurt Lipstein aus Anlass seines 70. Geburtstages 79, 84 (Peter Feuerstein & Clive Parry eds., 1980). 20 For the rationale behind this, cf. Mirjan R. Damaška, The Faces of Justice and State Authority: A Compa- rative Approach to the Legal Process 139 (1986). Russian Law Journal Volume IX (2021) Issue 2 34 issues of law are controversial. This is so because the basic – and often the only – ground for an appeal, and accordingly the main focus of the appellant’s brief, is to persuade the higher court that their interpretation of the law is correct and their opponent’s (or the lower court’s) is not. In the contemporary civil-law (continental) culture, judges technically ‘know’ the law, but they often need the parties’ attorneys to help them find the relevant provision and to determine its best reading. In Central and Eastern Europe, the maxim of Iura novit curia tends to be taken more seriously than in Western Europe. During the socialist era, idealistic readings of this principle drove legal arguments out of parties’ pleadings. According to the leading Czechoslovak commentary on civil procedure of the 1970s and 1980s, the law cannot be subject to judicial recognition during court proceedings; it must be known to the court before the dispute arises. “The knowledge of the law must be obtained by the [judicial] body itself (one can say) prior to [civil] proceedings and beyond these proceedings.”21 No cooperation was required in finding the law; moreover, this would prove harmful, as the parties would interfere with the court’s exclusive domain. An additional reason why no help was needed from the parties in constructing the law during the communist era lay in the fact that only a few parties were represented by a lawyer.22 Moreover, the circumstance that scant attention was paid to the attorneys’ arguments fit well within this picture of socialist application of the law because socialist legal systems claimed that no party should gain any advantage from having a better lawyer.23 This approach reflected the communistauthoritarian approach to the law, which is in fundamental contradiction with the discursive authoritative approach to the law, which prevailed in Europe in the meantime. I should recall that, when referring to an authoritarian approach, I mean an approach where legal answers can only be constructed in a single way from the top to the bottom, where the top of the system holds “a social monopoly over determining the meaning of legal and political language” and “communicating it downward.”24 An authoritarian approach to the law, combined with formalist textual positivism and the ideology of bound judicial application of the law, accords to the judge the exclusive role in constructing the meaning of the law. This is so because (1) application of the law is viewed conceptually as a resolution of easy cases by the court, which does not require the assistance of either party in the process (formalist aspect);25 and
21 Josef Rubeš et al., Občanský soudní řád. Komentář [Code of Civil Procedure. Commentary] 447 (1970) (emphases added). 22 Id. at 455, where a communist scholar does not seem even to expect that it might be possible for a party to be represented by a competent lawyer, who might provide a qualified legal opinion to the court. 23 Sbírka rozhodnutí československých soudů [Collection of Decisions of the Czechoslovak Courts], 1949, p. 1. 24 rodin 2005, at 7. 25 rubeš et al. 1970, at 455 (claiming that “as legal professionals, judges must know their legal order, and no one can claim that it would be impossible to know all the laws”). ZDENEK KÜHN 35
(2) construction of the law is the result of a top-down process, where the parties are the addressees of the result of construction rather than direct or indirect participants in this process (authoritarian aspect). It is clear that an authoritarian approach to the law still governs the post- communist legal discourse. The principle of Iura novit curia appears to function as a barrier separating the parties before the court from their judges. An intriguing vicious circle is at work here. The legal arguments made by the parties’ attorneys in their briefs rarely exceed a few paragraphs, and almost never include proper cites to literature and case law, thus providing the judge with little useful information. Perhaps because the legal arguments made by the parties are worthless, the judge will often ignore even those rare arguments which are valuable and might help him find the relevant case law, useful comparative materials from abroad, etc. Instead, the judge will only elaborate on the court’s own legal theories.26 Thus, when taken too seriously, the principle of Iura novit curia becomes self-fulfilling, discouraging parties from contributing to the court’s legal reasoning and judges from drawing upon the attorneys’ expertise.
3. Supreme Courts’ Interpretative Statements and Guidelines: Their Emergence and Persistence in Central and Eastern Europe
A phenomenon almost unknown in the Western world appeared in the 1950s in the then socialist countries of Central Europe. Following the Soviet model of guiding explanations issued by the plenum of the supreme court,27 the supreme courts of all Central European countries had, at times of the Communist rule, the power to issue guidelines and interpretative statements dealing with important legal questions. These statements were adopted in abstracto, without any real-life case pending before the court. In some states, such directives were formally binding on lower courts. Many of these directives were long treatises analyzing the correct and incorrect application of a specific law by lower courts over a certain period of time, without taking into account particulars of any case at hand.28 The socialist supreme courts prepared these documents as evaluations and appraisals of case law with a view to reacting promptly to the Communist Party
26 this approach is often criticized by the Czech Constitutional Court, which has repeatedly insisted that ordinary courts address every legal argument made by either party. Cf. the decision of 26 September 1996, III. ÚS 176/96. 27 on Soviet interpretative statements, cf. Akmal Kh. Saidov, Comparative Law 206 (William E. Butler transl., 2003) (Russian original in 2000). 28 in Hungary, cf. a critical evaluation from the viewpoint of the sources of law, Шмидт П. Конституционно- правовые вопросы системы источников права ВНР [Péter Schmidt, Constitutional Problems of the Hungarian System of Sources of Law], 27(1-2) Acta Juridica Academiae Scientiarum Hungaricae 133, 146–148 (1985). In Poland, cf. Andrzej Rzepliński, Die Justiz in der Volksrepublik Polen 163 ff. (Maria Jansen transl., 1996). Russian Law Journal Volume IX (2021) Issue 2 36
Congresses; at the beginning of these evaluations, they often emphasized the Party’s policies of the respective time. In these official documents, the anti-formalism of the socialist judiciary always won out, at least rhetorically, against “capitalist” positivism and dogmatism. For instance, the “Report of the Chief Justice of the Czechoslovak Supreme Court on the Significance of Ideology in the Judiciary” instructed the judiciary to act as a reliable tool to strengthen the state’s authority and the authority of state bodies, and also to serve as an effective “instrument” in the enforcement of socialist ideology.29 In Czechoslovakia, the very first interpretative statements in the history of this country were issued in 1953. Back then, they were called guidelines for the proper interpretation of legislation and other laws (směrnice pro správny vyklad zákonů a jinych právních předpisů).30 In the late 1960s, this designation was changed to statements ensuring unified interpretation of law (stanoviska k zajištění jednotného vykladu zákona).31 The statements and guidelines, faithful to their birth at the peak of Czechoslovak Stalinism, were linked to a strong emphasis on centralized interpretation of the law, distrusting decentralized lawmaking powers of lower courts. Moreover, because of lacking proper interactions between legal scholarship and the judiciary, these statements served as a certain substitute for them, while being attached to a strong and – of course – centralized and formal authority. One of the rare occasions when judges in socialist Central and Eastern Europe could speak freely (the 1968 Prague Spring, a short lived attempt to liberalize the Czechoslovak socialist regime) revealed that this very power of the supreme courts was considered to be a danger to judicial independence.32 And it was soon after the Soviet invasion of 21 August 1968 when the communist apparatchiks started to criticize the weakened role of these interpretative statements as one of typical products of the 1968 “reactionary” movement.33 Because the communist regime deeply distrusted the ability of its judges to apply the law based on their own reasoning and best judgment, it was necessary for the “socialist application of socialist law” to guide judges and direct them through the directives of the high courts.34
29 Zpráva předsedy Nejvyššího soudu Československé socialistické republiky o významu ideologické práce v justici [The Report of the Chief Justice of the Supreme Court of the Czechoslovak Socialist Republic on the Significance of Ideology in the Judiciary], Collection of Decisions 1974, at 439. 30 Sec. 26(1) of Act No. 66/1952 Coll., on the organization of courts. 31 See Act No. 156/1969 Coll., amending Act No. 36/1964 Coll., on the organization of courts and election of judges. 32 andrej Bajcura, Výsledky ankety o postavení sudcov [The Results of the Poll on the Status of Judges], 51 Právný obzor 834, 835 (1968). 33 Jan Němec, XIV. sjezd KSČ a úkoly justice [XIV Congress of the Communist Party of Czechoslovakia and the Task of the Judiciary], 19 Socialistická zákonnost 385, 390 (1971). 34 oldřich Rolenc & Vladimír Rolenc, K ústavní zásadě nezávislosti soudců [On the Constitutional Principle of the Independence of Judges], 19 Socialistická zákonnost 391, 396 & 401 (1971). ZDENEK KÜHN 37
The situation did not change much in this regard after 1989. Interpretative state- ments have become firmly internalized in the domestic legal cultures. Surprisingly enough, old-fashioned traditional ideas about precedents still dominate the judicial and legal discourse.35 Instead of precedents, most Central and Eastern European legal systems continue using interpretative statements and various guidelines prepared by the high courts, as a specific instrument of unbound judicial law-making par excellence. Such statements are still issued by supreme courts on certain legal issues in order to unify conflicting case law, without any real-life case pending before the supreme court. Unlike the situation in some countries prior to 1990, such statements are now usually not formally binding, though they naturally possess a high degree of force throughout the judicial system. The statements do not have any direct impact on any individual case, because they are decided in abstracto, on the proposal of the Supreme Court, minister of justice or like authorities, when these bodies conclude that the interest of uniform case law so demands.36 In Hungary, as the only system with a pre-Communist tradition of this abstract judicial law-making, these so-called uniformity decisions are even formally binding and the lower courts must therefore follow the interpretative directions found therein.37 German judges faced this socialist institution with a combination of surprise and embarrassment,38 because they view it as a conflict with their ideal that the judiciary makes law only by deciding cases, i.e. “interstitially,”39 and not by making the law in abstracto. It can thus be argued that the continuing adherence to this concept confirms what the post-Communist systems understand by the notion of
35 Frank Emmert, The Independence of Judges – A Concept Often Misunderstood in Central and Eastern Europe, 3(4) Eur. J. L. Reform 405 (2002). In more detail see Kühn 2011, at 207 ff. 36 i n the Czech Republic, the competence to request such a statement is vested, inter alia, in the Minister of Justice, see Secs. 123(3) and 14(3) of the Act on the Judiciary of 30 November 2001, No. 6/2002 Coll. Similarly in Slovakia, see Secs. 21(3) and 23 of the Act on the Judiciary of 9 December 2004, No. 757/ 2004 Z.z. [Official Gazette].I n Poland, the Supreme Court’s resolutions are requested, inter alia, by the Spokesman for Citizens’ Rights, the Public Prosecutor General or, within his/her competence, by the Spokesman for the Insured. See Art. 60(2) of the Supreme Court Act of 23 November 2002, Dz.U. Nr. 101 of 2002, item 924, available in English at http://www.sn.pl/english/sadnajw/index.html. 37 Cf. Árpád Erdei, Law of Criminal Procedure in Introduction to Hungarian Law 211 (Attila Harmathy ed., 1998). 38 as did German judges in their reports on the Czech judiciary of 2003. All of them actually criticized this institution, which in their opinion, was a waste of the Supreme Court’s energy. Moreover, they noted that it solved the question only in abstracto, without a proper judicial test at the lower levels. Souhrn návrhů pro českou justici v oblasti organizace soudnictví, civilního a trestního řízení [A Set of Proposals for the Czech Judiciary in the Area of Organization of the Judiciary and Civil and Criminal Procedure], Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (not published, on file with the author). 39 a s Justice Holmes once famously noted: Southern Pac. Co. v. Jensen, 244 U.S. 205, at 221 (1917) (Holmes, J., dissenting: “I recognize without hesitation that judges must and do legislature, but they do so only interstitially; they are confined from molar to molecular motions”). Russian Law Journal Volume IX (2021) Issue 2 38 judicial law-making and demonstrates why they have difficulties understanding proper judicial law-making. In the Czech Republic, both supreme courts have the power to adopt interpretative statements. Their actual practice differs, however.T he Supreme Court, as the final court for civil, commercial and criminal cases, will use this power very often. In fact, these statements seem to be the most important tool for the unification of case law and judicial law making. The Supreme Court rarely convenes its grand chambers for this purpose. Perhaps the conservative practice of the Supreme Court is influenced by the fact that this court is a direct continuation of the Supreme Court of the Czech Socialist Republic. In contrast, the Czech Supreme Administrative Court, as a new court established in 2003, has used this power only twice, both during the first two years of its existence. After 2005, it has never again used the power to adopt statements. The prevailing mood at this court is that such statements are an improper way of judicial decision making, some sort of unrestrained legislating from the bench, being in conflict with the separation of powers. Unlike the Supreme Court, the Supreme Administrative Court will convene its grand chamber to unify conflicting case law of its small chambers.40 I claim that one important reason, not only for the survival, but actually for the well-being of the imported concept of plenary interpretative statements is the continuing supremacy of an authoritarian conception of the law and legal discourse. An authoritarian discourse might face serious difficulties with attempting to internalize judicial law-making via a precedent proper, based on interactions between private parties and judges, both those at the lower echelons and those of the high courts, who possess the final authority to say what the law is in an individual case.T hat is why an authoritarian discourse has an open preference for centralized judicial law-making by supreme courts, without listening to anyone including the lower courts. In political terms, interpretative statements might be a welcome tool for politicians to model their laws via judicial abstract statements. The ministerial power to request such a statement might be easily misused to intervene in politically sensitive cases pending in lower courts. The politicians do so by inviting judges to decide on a particular problem, while sometimes punishing those who do not follow the rules of the game. To provide one example, the former Chief Justice of the Czech Supreme Court was infamously dismissed in February 2006 by the President Václav Klaus. One of the crucial reasons was the fact that the said Chief Justice did not assure “unification of the law” via judicial interpretative statements.T he President’s dismissal was annulled by the Constitutional Court, which rebuffed all his arguments.41
40 i should point out that I am a judge of the Supreme Administrative Court. 41 the judgment of the Constitutional Court of 11 July 2006, no. Pl. ÚS 18/06. For the best description of this case in English, see Michal Bobek, The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries, 14(1) Eur. Pub. L. 99 (2008). ZDENEK KÜHN 39
The single most important added value of these statements is their speediness and clarification of the law without having to wait until a specific case arrives at the supreme court in the regular way, through appellate proceedings or cassation. On the other hand, these statements and guidelines tend to turn the supreme court into a weird quasi-academic institution, debating legal issues detached from the colorful circumstances of real-life cases. The legitimacy of judicial lawmaking is vested in the judicial duty to address the facts of a pending case, not to address any issue the judge considers worthy of their attention, while disregarding that no case bringing this issue before the bench has yet emerged. The very procedure of adopting statements warrants yet another concern. They are usually adopted by a full court. However, judicial deliberation is and has to be different from parliamentary debates.T he difference between judicial deliberation and political discussions is qualitative rather than quantitative. Debates in the legislature bring together a number of speakers from various political groups and, on top of that, dozens more or less disinterested listeners who would later follow the opinion of their political club on a particular issue. In contrast, judicial deliberation is made through actual participation of all judges involved. Even though no one knows exactly the maximum number of people who could deliberate in this way, there can be no doubt that dozens of judges can hardly take part in rational judicial deliberation. The supreme courts, which make their decisions as full courts in the common law systems, rarely have more than nine justices. In the world of civil law, various grand chambers of supreme courts have never more than twenty judges. The same also applies to constitutional courts. Otherwise, there would be no time for all the judges to speak and it would be close to impossible to organize a rational legal debate in this way. Last but not least, it is not likely that dozens of judges involved in the adoption of statements could prepare well for debating complex issues of law. After all, if some of the judges were not prepared for the issue, this would not be visible in the assembly of dozens of people, most of whom must remain silent, just for the sake of time. At the end of the day, the entire “judicial” deliberation would shift towards a parliamentary debate, with many silent listeners who would then follow, in their voting, the opinions presented by the opinion leaders they trust the most. When debating the issue of interpretative statements, we must always be aware that judges are the finalauthoritative interpreters, not because they are omniscient and infallible, but because of their function and status within the legal system. The authority of a judge to decide the case “correctly” will be ultimately tested by a real- life case. Judges are not free riders picking up legal questions they want to consider depending on their immediate will and changing mood. When understood from this perspective, abstract judicial interpretative statements are not only against the very core of an authoritative legal discourse, but are also in conflict with the basic tenets of the separation of powers. Russian Law Journal Volume IX (2021) Issue 2 40
4. Revival of the Concept of Defensive Legalism
The imported notion of judicial activism seems to be slowly dying away in the region. As I mentioned at the beginning, during the times of socialism, the region’s conception of constitutional courts – if they existed at all (Poland, Hungary) – was the notion of self-restrained constitutional courts, with crude politics being supreme to the so-called socialist legality. This idea is again slowly gaining ground in the region. In contrast, the revival of activist constitutional courts in the 1990s could be viewed as a short-term deviation from the established rule. Even in those countries where constitutional courts still operate autonomously and are not influenced by the executive branch, the level of judicial activism is not comparable to what it used to be during the first two decades after the fall of the Iron Curtain (the Czech Republic might serve as an example). The degrees of political interference with the appointment or electoral process to the constitutional bench differed in the region.I nterestingly enough, no system proved to be immune to malfunctions and judicial vacancies. In some countries, the appointment procedures failed, and this resulted in empty benches and courts’ inability to perform their tasks (Hungary, already in the late 1990s; the Czech Republic, in the early 2000s; Slovakia, in 2019). In some countries, the courts are controlled, indirectly but effectively, by political forces which control all the branches of the government (Russia, Hungary after 2010). In some other countries, the constitutional court faced hostile takeover by the ruling political forces (the Polish Constitutional Tribunal’s crisis in 2015/2016). While an open disrespect to constitutional rulings is rare, even this can be en- countered in the region. In Poland, the constitutional courts’ decisions were openly disrespected, and the court was later taken over by the government through questio- nable judicial appointments and open violation of the electoral procedure (the Polish Constitutional Tribunal Crisis of 2015–2016). This occurred because while the Polish ruling illiberal party PiS won a simple majority of parliamentary seats, it was nevertheless far from obtaining a constitutional majority, and so it was necessary to take control of the body which could assess constitutionality of the new legislation.42 In yet other countries, the constitutional court fell under the control of illiberal majorities peacefully, due to a long-term dominance of one political party in the parliament, quite often combined with packing of the court, i. e. expanding the number of judges and appointing friendly ones to the bench (Russia, since the mid- 1990s; Hungary, after 201043). Be it one way or another, the common feature is that
42 For a detailed analysis of the Polish development after 2015, see Christian Davies, Hostile Takeover: How Law and Justice Captured Poland’s Courts, Freedom House (May 2018) (Feb. 20, 2021), available at https://freedomhouse.org/sites/default/files/poland%20brief%20final.pdf. 43 Sadurski 2014, at 10–13. ZDENEK KÜHN 41 the constitutional court has become much more self-restrained when compared to the era of the 1990s. In some countries, such as Poland, the captured court can become a welcome tool for the politicians in power in their efforts to dismantle constitutional guarantees and structures. When the Polish Constitutional Tribunal got under full control of the Law and Justice Party (PiS) in December 2016 (by very questionable means, most likely in direct conflict with the Constitution and the Constitutional Tribunal Act), the Tribunal immediately started to side with the ruling party. The new Chief Justice, who controls the case assignment, prevented the judges elected by the previous parliamentary majority from taking part in deciding important cases. Interestingly enough, the PiS deputies challenged several laws on the grounds of their unconstitutionality (although they could have easily annulled the laws themselves, in view of the majority they enjoyed in the parliament) and the Tribunal swiftly provided the answer the PiS needed.44 In contrast, the Hungarian ruling party does not need this sort of justification or legitimacy, because it has enjoyed a qualified majority in the parliament since 2010, necessary for adopting a new constitution, as well as electing the personnel of all important political institutions. The actual practice of the Hungarian Constitutional Court, after it has become fully dominated by people close to the ruling Fidesz party, is self-restraint with respect to the legislature. As W. Sadurski mentioned, this was nicely illustrated by an early decision made by the Constitutional Court before the Court was completely taken over by the new ruling elite. One of the Fidesz appointees, Justice Béla Pokol, argued in his dissenting opinion that the protection of fundamental rights as adjudicated earlier should be lowered when it is necessary to protect societal interests.45 This fittingly shows a deviation from earlier judicial philosophies, which emphasized the primacy of an individual over the state, not vice versa.46 In yet another role, constitutional courts could also protect the national consti- tutional values and principles against encroachments by supranational courts. After all, it has much better style if verdicts of the Strasbourg Court or the Luxembourg Court of Justice are rejected by the national constitutional court defending the national constitutional identity than if the same is done by a domestic government.47
44 See Wojciech Sadurski, Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler, 11(1) Hague J. Rule L. 63 (2018) (explaining how the Tribunal started to protect the government from laws enacted long before PiS took power). 45 Sadurski 2014, at 12. 46 See note 7 above and the accompanying text. 47 For a nice example of Russia and its complex relations with the European Court of Human Rights see Alexei Trochev, The Russian Constitutional Court and the Strasbourg Court: Judicial Pragmatism in a Dual State in Russia and the European Court of Human Rights: The Strasbourg Effect 125 (Lauri Mälksoo & Wolfgang Benedek eds., 2017). Russian Law Journal Volume IX (2021) Issue 2 42
To sum up: it is not likely that the Central and Eastern European constitutional courts would be abolished altogether in the foreseeable future. The effects of the global rise of constitutional adjudication still control the mainstream political rhetoric. Even authoritarian regimes do not want to be viewed as autocrats running wild, unrestrained by any checks and balances. But the actual importance of constitutional courts is withering away. It is very likely that in many countries of the region, the actual political significance and real independence of the constitutional courts will resemble the situation prior to 1990. They will look very much like those politically loyal constitutional tribunals that operated in the few countries which practiced constitutional review under socialism.
Acknowledgements
The article was written within the Czech Science Foundation (GA ČR) project reg. No. 19-10723S “What Unifies Current Law and What Fragmentises it from the Perspective of Legal Theory and Judicial Practice.”
References
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Information about the author
Zdenek Kühn (Prague, Czech Republic) – Professor of Jurisprudence, Faculty of Law, Charles University (7 nám. Curieových, Praha 1, 116 40, Czech Republic; e-mail: [email protected]). THE SOCIAL ISSUE IN PERUVIAN CONSTITUTIONALISM OF THE 20TH CENTURY AND IN THE CASE LAW OF THE CONSTITUTIONAL COURT: INFLUENCE OF SOCIALIST CONSTITUTIONALISM?
CÉSAR LANDA, Pontificia Universidad Católica del Perú (Lima, Peru)
ISABEL SÁNCHEZ, Peruvian Constitutional Court (Lima, Peru)
https://doi.org/10.17589/2309-8678-2021-9-2-44-69
The socialist ideas of Russian Revolution were well-known in Peru, according with the struggles of working-class and student movements and the birth of socialist and communist parties. But the Peruvian Constitutions of 1920 and 1993 only opened someone social rights, not only for the workers, but also for the indigenous people to protect their community territories. Only with the Constitution of 1979 the leftwing constituents were almost one third of the constituents. In this way the Constitution included social ideas in the type of State as social and democratic Rule of Law, the equal rights between all persons, particularly between men and women, the employment was protect by the State, the public education cost-free, the property had a social function, the natural resources were of the Nation, and the indigenous and Amazonian communities were protected, etc. But, with the neoliberal Constitution of 1993 the economic model was liberalized in favor of the market and the international investors, reducing the social rights, and the national power was centralized in the Executive Power. But, since 2000, after the fall-down of Fujimori’s regimen, the Constitutional Court played a role of balanced the impact of this new model, according with the international treaties of human rights and social rights. In this sense, the Constitutional Court was able to give the Constitution of 1993 a social content.
Keywords: social ideas; socialist constitutionalism; Peruvian social doctrine; model of State; material equality; property; land problem; indigenous problem; work; social rights, Constitutional Court. CÉSAR LANDA, ISABEL SÁNCHEZ 45
Recommended citation: César Landa & Isabel Sánchez, The Social Issue in Peruvian Constitutionalism of the 20th Century and in the Case Law of the Constitutional Court: Influence of Socialist Constitutionalism?, 9(2) Russian Law Journal 44–69 (2021).
Table of Contents
Introduction 1. The Debate of Social Ideas in Early Twentieth-Century Peru 2. The Position of Peruvian Legal Doctrine and Stakeholders Regarding Social Ideas in the Early Twentieth Century 2.1. Jurists 2.1.1. Juan Bautista de Lavalle 2.1.2. José León Barandiarán 2.2. Stakeholders 2.2.1. Manuel Caracciolo Lévano and Delfín Lévano 2.2.2. José Carlos Mariátegui 3. Reception of Socialist Constitutionalism in the Peruvian Constitutions of the Twentieth Century? 3.1. The State and its Form 3.2. Material Equality 3.3. Property 3.4. The Land Problem 3.5. The Indigenous Problem 3.6. Work 4. Peruvian Constitutional Court Rulings on Economic, Social, and Cultural Rights 4.1. The State and its Form 4.2. Material Equality 4.3. Property 4.4. The Land Problem and the Indigenous Problem 4.5. Work Conclusion
Introduction
Socialists and their ideas were present in the constituent debates of twentieth- century Peru starting with the Congreso Constituyente (Constituent Congress) of 1932, in which four representatives of the Partido Socialista (Socialist Party) took part in the debates on the Constitution of 1933.1 A more organic participation, however,
1 rocío Chirinos Montalbetti, La Constitución peruana de 1933 76 (1991). Russian Law Journal Volume IX (2021) Issue 2 46 took place in the Asamblea Constituyente (Constituent Assembly) of 1978-1979, when the left-wing parties – Frente Obrero y Campesino del Perú (Workers’ and Peasants’ Front of Peru), Partido Comunista Peruano (Peruvian Communist Party), the Partido Socialista Revolucionario (Revolutionary Socialist Party), Acción Popular Socialista (Socialist People’s Action), and Unidad Democrática Popular (People’s Democratic Unity) – made up more than 30% of the Assembly that debated the Peruvian Political Constitution of 1979, along with the Partido Aprista Peruano (Peruvian Aprista Party) and the Partido Popular Cristiano (Christian People’s Party). It was in this constituent assembly that the social and economic values and principles in favor of the majority were most thoroughly expressed, in both the preamble and certain chapters of the resulting Constitution. Most noteworthy among these were the sections on the formula of the social state, planning in a social market economy model, entrepreneurial pluralism, the social function of property, labor, health, education, peasant and native communities, among others. Thus, the Constitution of 1979 has been referred to as the product of the ideas of social democracy, social Christianity, and democratic socialism.2 However, the Constitution of 1979 was repealed by the then-president Alberto Fujimori’s self-coup in 1992, and was promptly replaced by the Constitution of 1993 – issued by a Congreso Constituyente Democrático (Democratic Constituent Congress) – from which any social ideas were practically banned in favor of the economically liberal and politically conservative model on which the Fujimorista regime was based. The congress that drafted this Constitution barely included ten leftwing constituents. Despite this, some of them played an outstanding role in the debates, much like they had in the constituent assembly of 1932. On the other hand, the Constitutional Court was also created based on the Constitution of 1993. Since 2002, this Constitutional Court has developed a body of jurisprudence that has made use of certain ideas on social equality and economic, social, and cultural rights in the court’s rulings on cases brought before it, in an attempt to give the Constitution of 1993 a social content, inspired mainly by the comparative social constitutionalism of Spain, Italy and Germany. This being the case, can we truly speak of any significant influence of socialist ideas in the Peruvian Constitutions of the twentieth century? A heated debate of ideas began in Peru in the early 20th Century, regarding the social issue. This occurred against the backdrop of three historical events that marked the social climate in the Continent, either because of their influence or due to the reactions that these events unleashed among the local population: the Mexican Revolution of 1910 and its Querétaro Constitution of 1917;3 the fall of the German Empire and the
2 Henry Pease, La Constituyente de 1979 en el proceso político peruano in Constitución y Sociedad Política 13, 35–38 (Marcial Rubio & Enrique Bernales eds., 1981). See also, Alberto Ruiz-Eldrege, La Constitución Comentada 1979 16 (1980). 3 Cf. Catherine Andrews, Un siglo de constitucionalismo en América Latina (1917–2017) (2017). CÉSAR LANDA, ISABEL SÁNCHEZ 47 establishment of the Weimar Republic, with its social Constitution of 1919; and the Russian Revolution of 1917 – more so than its Constitution of 1918 – which, according to Boaventura de Sousa Santos, “shook the world and set the living conditions of almost a third of the world’s population over the following decades.”4
1. The Debate of Social Ideas in Early Twentieth-Century Peru
In the first few decades of the twentieth century, a debate on political ideas was held in Peru in the context of popular demands, marking a before and after in terms of the handling of the social issue in the country. We refer to the debate between Víctor Raúl Haya de la Torre and José Carlos Mariátegui. Originally, these two thinkers had several points in common. Indeed, both of them initially challenged the capitalist system and shared a vision of Peru’s society at the time as semi-feudal and semi-colonial.5 Insofar as the country’s core economic difficulties could not be tackled without addressing “the economic problem of the indigenous peasantry,”6 the question of land became the country’s primary social problem.7 In 1928, however, the two thinkers began to distance themselves from one another after Haya de la Torre claimed that capitalism was an inevitable stage for Peru’s social development.8 For his part, Mariátegui argued for Peru’s “own, distinct kind of Marxism”9 in which the struggle of classes in the Andes was to be led by the Peasant.10 As noted by Flores Galindo:
José Carlos Mariátegui thought it was possible to found a socialist project in Peru in view that Peruvian history had followed a different course from Europe’s evolution. Here, socialism – product of the modern, industrial world, of cities and of the working class – could converge with the country’s own historical trajectory. Hence, it was critical for Mariátegui to demonstrate that a peculiar case of Inca society had given rise to a State without private property and with the persistence of collectivistic traits. The so-called “primitive
4 Boaventura de Sousa Santos, A cien años de la Revolución Rusa: El problema del pasado es que no pasa, Rebelión, 10 February 2017 (Feb. 14, 2021), available at https://www.rebelion.org/noticia.php?id=222772. 5 mariano Valderrama, Haya de la Torre y el APRA de los años veinte, 5 Revista de la Universidad Católica 128 (1979). 6 Id. 7 Id. at 129. 8 Id. at 130. 9 e nrique Dussel, El marxismo de Mariátegui como ‘filosofía de la revolución’ in El marxismo de José Carlos Mariátegui. Vº Congreso Nacional de Filosofía 27, 33 (David Sobrevilla Alcázar ed., 1995). 10 Id. Russian Law Journal Volume IX (2021) Issue 2 48
communism,” as it was termed in the Communist Manifesto, was reproduced through what he called Inca agrarian communism … that persisted to this day in peasant communities, where it was possible to find the equivalent of present-day socialism in the form of the collective appropriation of pastures, land, and the labor of the peasantry, still in practice.11
According to the foregoing, it may be observed that the root of these ideas was institutionalized in Peruvian society through the parties that followed Mariátegui and his ideology. Many years later, this would allow the expression of such interests in the public sphere by Marxist and/or Leninist parties, as well as the workers’ union movements that shared their ideological orientation, through legitimate and legally established channels of popular representation. As we will see, in terms of the social issue, the Peruvian Political Constitution of 1979 – drafted by the people’s representatives elected to the Constituent Assembly of 1978 (primarily from the Partido Aprista Peruano, the Partido Popular Cristiano, and the left wing parties, both Marxist and non-Marxist) – manifestly exceeded its predecessors (the Constitution of 1920 and the Constitution 1933), along with the subsequent Peruvian Constitution of 1993, which does not imply that its social principles, rules, and values were actually materialized during the time it remained in force.
2. The Position of Peruvian Legal Doctrine and Stakeholders Regarding Social Ideas in the Early Twentieth Century
Particularly noteworthy are two major twentieth-century Peruvian jurists: Juan Bautista de Lavalle and José León Barandiarán. While the former vehemently rejected the idea of the proletarian revolution and its enforcement in Peru, the latter had a much more receptive view of the social issue in legal-constitutional terms.
2.1. Jurists 2.1.1. Juan Bautista de Lavalle As a lead professor of the Universidad Nacional Mayor de San Marcos, in 1923, Juan Bautista de Lavalle gave a speech in memory of the great jurist Luis Felipe Villarán (1845–1920), which was later published as a book entitled “Luis Felipe Villarán. El Maestro, el Jurista, el Magistrado.” In this speech, Lavalle rejected the ideas and actions of the Russian Revolution of 1917, querying any influence it might have in Peru based on his belief that it would be politically, socially, and economically disastrous. Lavalle believed that Luis Felipe Villarán would also have rejected these socialist ideas, stating that “for this noble professor of liberalism, the mystical or political
11 alberto Flores Galindo, Para situar a Mariátegui in Pensamiento político peruano 205 (1987). CÉSAR LANDA, ISABEL SÁNCHEZ 49 absolutism of an ancient tyrant would have been equally as unjustifiable as the new dictatorships organized in the name of the Marxist economic revolution.”12 To this end, he argued that:
In view of the oversimplification of its materialistic concept of history and the class struggle, which have been discredited by legal and economic philosophers; its disregard for moral forces and factors of irreplaceable value to human existence; its proposed solutions that are irreconcilable with the fundamentals of a democratic government; in defense of the thousand year old civilization now being threatened it imperative that we pass the harshest of judgments on the Marxist ideology so recklessly being wielded by all those who seek to take advantage of the force that has represented, and continues to be represented on this earth by the effortless exploitation of human ignorance, naivety, and discontent.13
On the other hand, what Lavalle’s writings make clear is that he conceived social reform based not on the actions of the masses, but on the will for individual change rooted in moral renewal.14 In short, Lavalle adopts an opposite position against the collective action and political organization of the working class based on social demands, a position which was typical among the legally established oligarchy who rejected the Russian Revolution from an individualistic, liberal, and sometimes even conservative, standpoint.
2.1.2. José León Barandiarán On the other hand, the renowned Peruvian jurist José León Barandiarán (1899– 1987), published a paper in 193015 in which he analyzes the German Constitution of 1919 and explains the upheaval experienced in Germany after its defeat in World War I, which in turn led to the outburst of revolutionary movements in the country led by both socialists (Bolsheviks) and social democrats. Barandiarán, who is also considered to have been the first to introduce Jhering’s philosophy in Peru16, viewed the Weimar Constitution as being clearly social in nature, referring that:
12 Juan Bautista de Lavalle, Luis Felipe Villarán. El Maestro, el Jurista, el Magistrado 19 (1923). 13 Id. at 26. 14 Id. at 27–28. 15 José León León Barandiarán, La Constitución Alemana de 1919 (1930); see also, Manuel Vicente Villarán, El Gobierno de Alemania. El Imperio. La República. La Dictadura 33–58 (1936). 16 Luis LLoredo Alix, La recepción de Rudolf Von Jhering en Asia y Latinoamérica, 31 Anuario de Filosofía Jurídica y Social 5, 35 (2016). Russian Law Journal Volume IX (2021) Issue 2 50
Without a doubt, the German ideological context was not suitable for the implementation of a Russian-style of socialism. Ideas possess absolute value in terms of their content, and not in terms of how they are implemented. The how is circumstantial, and depends on the idiosyncrasies of each population. The absolute value of the socialist idea lies in the fact that it reflects an inevitable future organization. From this standpoint, the Weimar Constitution, which represents progress, even if only relative, in the evolution toward socialism, has undisputed merit. Its study offers many valuable suggestions with regard to today’s political and social problems.17
León Barandiarán admired the fact that German social democracy had chosen this particular model over that offered by the Bolshevik option of the Soviets and promoted by German socialists. A choice that allowed the expression of social law in the Constitution of 1919.
2.2. Stakeholders Also worth highlighting are certain social actors and thinkers who played a key role in events of undeniable legal and political importance, which, in the case of Peru, included the establishment of the eight-hour workday in 1919, along with the introduction of socialism in Peru.
2.2.1. Manuel Caracciolo Lévano and Delfín Lévano Manuel Caracciolo Lévano and Delfín Lévano, father and son respectively, were two major leaders, whose participation in the worker’s movement to obtain an eight- hour workday was decisive, in terms of the organization of their workers’ unions and their dissemination and broadcasting in the media, such as the weekly paper “La Protesta.”18 Thus, for example, in a ceremony that took place on 1 May 1905, Manuel Caracciolo Lévano mentioned the struggles of the slaves in Tsarist Russia, proclaiming, “May what the slaves do today in Russia be done tomorrow by the slaves in Peru!” in a speech following that given by Manuel González Prada, a reputed intellectual anarchist of the time who served as an intellectual model and source of inspiration for the workers’ movement.19 After several years of different initiatives (such as the union of bread bakers known as the Federación de Obreros Panaderos “Estrella del Perú”), demonstrations, strikes, and forceful measures, the eight-hour workday was finally decreed during José Pardo’s second term in office in 1919, thereby putting an end to a process that began in the nineteenth century after the events in Chicago (1886).
17 León Barandiarán 1930, at 11. 18 Cf. Semanario “Hildebrandt en sus trece,” Año 9, No. 428, 29 March 2019, at 19 & 38. See also César Lévano, Las ocho horas. Historia real de una victoria exclusivamente obrera (2019). 19 Semanario “Hildebrandt en sus trece,” supra note 18, at 38. CÉSAR LANDA, ISABEL SÁNCHEZ 51
In any case, although the Political Constitution of 1920 contained no express recog- nition of the eight-hour workday, Article 47 did mention that the law would establish “maximum working conditions and minimum salaries based on age, sex, the nature of the tasks, and the conditions and needs of the country’s different regions.”
2.2.2. José Carlos Mariátegui Appearing in the midst of this workers’ struggle was José Carlos Mariátegui, known by the nickname “El Amauta,” an “unmatched and unsurpassed” ideologist of socialism in Peru who sought to erect socialism as a “heroic creation.” With this goal in mind, he founded the Peruvian communist party in 1928, which despite being named Partido Socialista (Socialist Party) – formed part of the Communist International. Mariátegui was indeed the ideologist who introduced socialism in Peru, although with certain nuances that reflected Peru’s reality. His discourse, however, was political more than legal, since the law at that time was solely valued as a subsequent expression of policy, and never the other way around. For Mariátegui, the October Russian Revolution was the highest expression of the peoples’ struggle throughout the twentieth century because it marked the beginning of a new stage of history that would work to reverse oppression, injustice, and poverty. Hence, in November 1921, Mariategui would state that, “The Russian Revolution has marked the start of the Social Revolution.”20 Mariátegui also spearheaded the creation of a unified union organization for the defense of workers’ rights, which is now known as the Confederación General de Trabajadores del Perú (CGTP).
3. Reception of Socialist Constitutionalism in the Peruvian Constitutions of the Twentieth Century?
Having provided the foregoing background, we will now proceed to evaluate whether socialist constitutionalism – understood as a new political and legal order at the service of the working class,21 expressed in Russia in the Declaration of Rights of Working and Exploited People and in its Constitution (1918) – had any direct or indirect influence on the Peruvian Constitutions of the twentieth century. To this effect, the following guidelines have been selected: i) the kind of state; ii) material equality; iii) the land problem; iv) protection against exploitation and other forms of slavery (the “Native Peruvian problem”).
20 Gustavo Espinoza, José Carlos Mariátegui y la Revolución Rusa, Rebelión, 13 November 2007 (Feb. 14, 2021), available at http://www.rebelion.org/noticia.php?id=58936. 21 Cf. Comisión del Centenario de la Revolución Socialista de Octubre, Constitucionalismo soviético (I). Fundamentos ideológicos, Comisión Octubre, 7 February 2017 (Feb. 14, 2021), available at https:// octubre1917.net/2017/02/07/constitucionalismo-1/. Russian Law Journal Volume IX (2021) Issue 2 52
3.1. Type of State In the case of Peru, during the twentieth century, starting with the Political Constitution of 1933, it was established that the State’s power stems from the people and is exercised by State officials with the limitations set forth in the Constitution and the law (Art. 1). Similar provisions can be found in the Peruvian Constitutions of 1979 (Art. 81) and 1993 (Art. 45). None of these Peruvian Constitutions established a labor-based socialist republic, opting instead for the formula of a Social and Democratic State governed by the rule of law, established in the Political Constitution of 1979 (Art. 4). To date, this classification is still used to identify the Peruvian State, in accordance withA rticles 3 and 43 of the Peruvian Constitution of 1993 and the terms set forth in the case law of the Peruvian Constitutional Court. Regardless of the adopted nominal State model, the development of the Peruvian Constitution’s contents have granted it a social identity of its own through the concepts of equality, property, land, the Peruvian Native, and labor.
3.2. Material Equality In principle, the Peruvian Constitutions of 1920 and 1933 contain no provisions regarding the explicit recognition of material equality; particularly if we bear in mind that in such Constitutions, rights were conceived as guarantees, which validity was based on the law. However, there are provisions related to the acknowledgement of equality, in both general and specific terms, such as the following: • Article 17 of the Constitution of 1920: “Special laws may be established as required by the nature of things, but not based on differences among persons.” • Article 23 of the Constitution of 1933: “Special laws may be enacted when so required by the nature of things, but not based on differences among persons.” The entry into force of the Peruvian Constitution of 1979, acknowledged that fundamental rights are both prior to and greater than the State, due to the predominance of the human being and his dignity. This evaluative framework not only included a recognition of formal equality (Art. 187), but also a large number of provisions directly related to material equality: • Article 2, Section 2 on the right to equality: “Men and women shall have equal opportunities and responsibilities. The law grants men and women equal rights.” • Article 24 on the right to education: “The State is responsible for establishing plans and programs and for directing and supervising education to ensure its quality and efficiency in accordance with regional characteristics; and for granting equal opportunities to all.” • Article 42 on the right to work: “Employment, in its different forms, is protected by the State without discrimination, under a system of equal treatment.” Conversely, the Peruvian Constitution of 1993 included only some of the pre- ceding provisions. Thus, for example, while recognizing formal equality (Art. 103) it CÉSAR LANDA, ISABEL SÁNCHEZ 53 overlooked the provision on equal opportunities and responsibility between men and women, which at present has been established by law (Law 28983); and their inclusion among the purposes of the right to education. On the other hand, the following provisions were now included: • Article 26 on the principles regulating employment: “In the employment rela- tionship, the following principles shall be respected: 1. Equal opportunities, without discrimination.” • Article 59 on the economic role of the State: “The state shall provide opportunities for development to those sectors suffering from any type of inequality.” As observed, the Constitution of 1993 reduced the scope of the explicit constitutional recognition of material equality. However, this drawback has been overcome by the Constitutional Court’s interpretations in its rulings on legal- constitutional disputes, as analyzed hereinafter.
3.3. Property Property, in the Peruvian Constitutions of 1920 and 1933, was established as a social and/or national guarantee. In the Peruvian Constitution of 1920, we find provisions that basically regulate private property, along with property owned by the state, public institutions, and – recognized for the very first time – indigenous communities. These property rights are not statute barred and can only be transferred by public deed, in the cases and in the form and manner established by law (Art. 41). In any event, expropriation is allowed on the grounds of a legally proven public interest, with the prior payment of a fair-price (Art. 38). According to this Constitution, “public goods whose use belongs to all, such as rivers and public roadways, cannot be held as private property” (Art. 38); “mining property, fully belongs to the State”; and “possession or use may only be granted in the form and under the conditions set forth by law” (Art. 42). As in the Constitution of 1920, the Peruvian Constitution of 1933 also established that public goods cannot be held as private property, including rivers, lakes, and public roadways (Art. 33), and that “no one can be deprived of what is rightfully his except on the grounds of a legally proven public interest, with the prior payment of fair-price compensation” (Art. 29). This Constitution also established the following: • Article 34: “Property must be used in keeping with the public interest. The law shall establish the limits and forms of the right to property.” • Article 35: “The law may, for reasons of national interest, establish special rest- rictions and prohibitions on the acquisition and transfer of certain types of property, whether based on their nature, condition, or location in Peruvian territory.” • Article 37: “Mines, land, forests, water, and, in general, all natural sources of wealth belong to the state, except for legally acquired rights. The law shall establish the conditions for the use of these goods by the State, or their concession, whether in ownership or in use, to private parties.” Russian Law Journal Volume IX (2021) Issue 2 54
• Article 38: “The State may, by virtue of a law, take possession of or nationalize overland, maritime, river, lake, and air transportation or other privately-owned public services, prior payment of compensation and in accordance with the laws in force.” • Article 209: “Community property is indefeasible and imprescriptible, except in the case of expropriation on the grounds of public interest, with the prior payment of compensation. Likewise, such property cannot be attached.” It was not until the enactment of the Constitution of 1979 that property was recognized as a fundamental right (Art. 2, Sec. 14), as follows: • Article 124: “Ownership binds the owner of a property to use such goods in keeping with public interest. The State shall promote access to property in all of its modalities. The law shall establish the forms, obligations, limitations, and guarantees of the right to property.” • Article 125: “No one may be deprived of what is rightfully his except on the grounds of public necessity and utility or social interest, declared in accordance with the law, with the prior payment of compensation, that must be necessarily paid in cash and in advance.” • Article 126: “The law may, for reasons of national interest, establish special restrictions and prohibitions on the acquisition, possession, exploitation, and transfer of certain goods based on their nature, condition, or location.” • Article 128: “Public goods, whose use belongs to all, are not subject to private rights.” Subsequently, the Constitution of 1993 recognized the fundamental right to property (Art. 2, Sec. 16), amending the grounds for expropriation set forth in the previous Constitution. Now, instead of public necessity and utility or social interest, in the Constitution currently in force the grounds for expropriation, are national security or public interest, as follows: • Article 70: “No one may be deprived of his property, except exclusively for reasons of national security or public interest, declared by law, with the prior cash payment of fair-price compensation that includes consideration for contingent damages. Action may be filed before the Judiciary to challenge the value of the property established by the State during the expropriation process.” Exceptional temporary restrictions on property were also introduced for reasons of national security: • Article 72: “The law may, exclusively for reasons of national security, temporarily establish specific restrictions and prohibitions on the acquisition, possession, exploitation, and transfer of certain goods.” With regard to goods of public domain and use, the Constitution of 1993 establishes the following: • Article 73: “Goods of Public Domain and Use: Goods of the public domain are indefeasible and imprescriptible. Goods for public use may be granted to private parties, in accordance with law, for economic exploitation.” CÉSAR LANDA, ISABEL SÁNCHEZ 55
Additionally, the connection between property and the economic model in force was established as follows: • Article 60: “The national economy is based on the coexistence of different forms of property and enterprise.” Thus, unlike the Constitution of 1979, the Constitution of 1993 did not explicitly enforce the balance between the right to property and the public interest. Despite this, the social function of property has frequently been developed in the case law of the Peruvian Constitutional Court.
3.4. The Land Problem The land problem in Peru has historically been one of those issues that has had the greatest impact on coexistence in Peruvian society, generation after generation. During the twentieth century, although a number of political and electoral proposals were made for the implementation of an agrarian reform process in the country, this did not effectively occur until the Revolutionary Government of the Armed Forces, which began in 1969 with the issue of Decree Law (Decreto Ley) 17716. The Constitution of 1920 does not expressly mention the land problem, albeit it does contain a provision stating that those goods owned by indigenous communities are imprescriptible, and can only be transferred by public deed, in the cases and in the form and manner established by law (Art. 41). Later, the Constitution of 1933 explicitly established a provision in favor of land ownership by indigenous communities, as follows: • Article 211: “The State shall, with preference, award land to those indigenous communities that do not have enough to meet the needs of their population, and shall expropriate privately owned land for such purpose.” For its part, the Constitution of 1979 included an entire chapter on the agrarian regime (Title III, Chapter VII), most notably containing the following provisions: • Article 157: “The State guarantees the right to private ownership of land by individuals, cooperatives, communities, self-managed groups, or any other form of association directly controlled by its proprietors, in keeping with the public interest and in accordance with the regulations and limitations established by law […] Abandoned land shall fall under the domain of the State, to be awarded to landless peasants.” • Article 158: “The State, through public sector agricultural institutions and farmer associations and entities, shall establish and implement a policy that guarantees the development of agrarian activity, in harmony with other sectors of the economy.” Special note should be made of Article 159 of the Constitution of 1979, which established the agrarian reform as follows: • It was an instrument for the transformation of the rural framework and the comprehensive promotion of persons who made their living from the land. • It aimed to implement a fair system for the ownership, tenure and working of the land, with a view to the economic and social development of the nation. Russian Law Journal Volume IX (2021) Issue 2 56
• It prohibited landlordism and aimed to gradually eliminate small-scale farming through plans for the concentration of land plots. • It sought to disseminate, consolidate, and protect small- and medium-scale private rural property, within the limits established by law. • It sought to promote the development of cooperative enterprises and other freely established forms of association for the production, processing, trade, and distribution of agricultural products. Upon its entry into force, the Constitution of 1993 maintained a chapter on the agrarian system and peasant communities (Title III, Chapter VI). However, this new Constitution established a clearly reduced scope in comparison to its predecessor. Article 88 of this Constitution established the following: • The State shall give preferential support to agrarian development. • Guaranteed right to the ownership of land, whether by private individuals or communities or any other form of association. • The law may establish the boundaries and area of land holdings based on the peculiarities of each zone. • Abandoned land shall, by law, fall under the domain of the State, for ongoing sale. As observed, the Constitution of 1993 largely withdrew the State’s support for agricultural development, by maintaining just one reference to the agrarian regime, for which the State must at least provide preferential support. For its part, the agrarian reform is not mentioned at all, given the neoliberal economic model on which the Constitution of 1993 is based.
3.5. The Indigenous Problem In an Andean country such as Peru – deeply rooted in the culture of the Inca Empire that was invaded by the Spanish Crown, and its subsequent independence as a republic in 1821 – the indigenous problem was one of the key issues to be addressed in the different Constitutions enacted during the twentieth century. First of all, attention should be drawn to Article 58 of the Constitution of 1920, according to which,
The State shall protect the indigenous race and enact special laws for its development and culture in keeping with its needs. The nation recognizes the legal existence of the indigenous communities and the law shall vest these communities with the corresponding rights.
Later, the Constitution of 1933 included a title dedicated to indigenous commu- nities (Title XI). In addition to the creation of the Ministry of Labor and Indigenous Affairs A( rt. 181), which was finally materialized in 1949, this Constitution also established the following provisions: • Article 207: “Indigenous communities shall enjoy legal existence and legal status.” • Article 208: “The State shall guarantee the integrity of the communities’ property …” CÉSAR LANDA, ISABEL SÁNCHEZ 57
• Article 210: “Neither municipal councils nor corporations nor any other authority shall intervene in the collection and management of the revenues and goods of the communities.” • Article 212: “The State shall enact the civil, criminal, economic, educational, and administrative laws required by the particular conditions of the indigenous peoples.” The Constitution of 1979 included a chapter on indigenous communities (Title III, Chapter VIII), consisting essentially of the following provisions: • Article 161: “Peasant and Native Communities shall enjoy legal existence and status. They are autonomous in their organization, communal work, and use of the land, as well as in all economic and administrative matters within the framework established by law. The State shall respect and protect the traditions of the Peasant and Native Communities, and foster the cultural development of their members.” • Article 162: “The State shall promote the comprehensive development of Peasant and Native Communities, and encourage communal and cooperative enterprises.” In terms of the ownership of land by these communities, the referred Constitution explicitly stated that such land could not be attached, was indefeasible and imprescriptible, except by virtue of a law based on the interest of the community and requested by majority of two-thirds of eligible community members, or in the case of expropriation on the grounds of public necessity and utility, subject to prior payment (Art. 163). The Constitution also prohibited land-grabbing practices within the communities (Art. 163). However, in the Constitution of 1993, the rights and duties of the peasant and native communities (Title III, Chapter VI) were reduced in Article 89, according to which:
Peasant and Native Communities shall enjoy legal existence and status. They are autonomous in their organization, their communal work, and the use and free disposal of their lands, as well as all economic and administrative matters, within the framework established by law. Ownership of their lands is imprescriptible, except in the case of abandonment provided for in the preceding section. The State shall respect the cultural identity of all Peasant and Native Communities.
If we compare the scope of protection provided to peasant and native communities by the Constitution of 1979 with that of 1993, it becomes quite clear that the former provides a much more explicit and robust protection than the current Constitution. As in previous cases, the case law of the Peruvian Constitutional Court has played a key role in setting the scope and limits of this protection within the framework of the constitutional principles, rules, and values.
3.6. Work Concerning employment, the Peruvian Constitution of 1920 established provisions on the subject both in the section on individual guarantees and that on social guarantees. Russian Law Journal Volume IX (2021) Issue 2 58
Specifically, Article 22 established that,
There are no, nor can there be slaves in the Republic. No one can be forced to render personal labor without his free consent, and without due compensation. The law does not recognize any covenant or imposition whatsoever that deprives any person of his individual liberty.
As for those provisions on employment established as social guarantees, Article 47 establishes that “The State shall pass legislation on the general organization and safety of industrial work, and on the guarantee of life, health, and hygiene therein.” Likewise, “the law shall establish the maximum working conditions and minimum salaries in relation to age, sex, the nature of the tasks, and the conditions and needs of the country’s different regions,” as well as that “the compensation of occupational accidents shall be mandatory and rendered effective in the form and manner estab- lished by the law.” For its part, the Peruvian Constitution of 1933 also included provisions on employ- ment among its national, social, and individual guarantees. National guarantees included the following: • Article 42: “The State guarantees the right to work. All professions, industries, or tra- des that are not contrary to public decency, health, or safety may be freely exercised.” • Article 43: “The state shall pass laws on collective bargaining.” • Article 44: “Employment contracts shall be prohibited from including any provision restricting the exercise of civil, political, and social rights.” • Article 45: “The State shall promote a profit sharing system in favor of employees and workers, and shall pass laws on all other aspects of the relations between the two parties, as well as on the defense of employees and workers in general.” • Article 46: “The State shall pass laws on the general organization and safety of industrial work, and on the guarantees of life, health, and hygiene therein. • The law shall fix the maximum working conditions, severance pay and compen- sation for accidents, as well as minimum salaries, based on age, sex, the nature of the work, and the conditions and needs of the country’s different regions.” In terms of individual guarantees, Article 55 states that,
No one may be forced to render his personal services without his free consent, or without due compensation.
As previously mentioned, these Constitutions did not establish labor rights, but rather legal guarantees. However, this situation radically changed, at least in formal terms, with the entry into effect of the Peruvian Constitution of 1979, which addressed the issue of the fundamental right to work in its Title I, Chapter V: “On the Fundamental Rights and Duties of the Individual.” CÉSAR LANDA, ISABEL SÁNCHEZ 59
Over the course of sixteen articles, it established a strong constitutional framework for the protection of employment as a value, principle, and fundamental right, as highlighted in the following provisions: • The State’s recognition of employment as the main source of wealth, as a right, and social duty (Art. 42). • The State’s duty to promote the economic and social conditions required to eliminate poverty and ensure equal opportunities for useful occupation, to all inhabitants of the country that will protect them against unemployment or underemployment in any of its forms (Art. 42). • The prohibition of any condition that may prevent the workers from exercising their constitutional rights, or that disregard or diminish their dignity (Art. 42). • The State is responsible for prohibiting discrimination in the different forms of employment and the protection of equal treatment (Art. 42). • The worker’s right to fair pay, to ensure the necessary material wellbeing and spiritual development for him and his family (Art. 43). • The right of all workers, whether male or female, to equal pay for equal work rendered in identical conditions for the same employer (Art. 43). • The State’s periodic adjustment of the minimum wage (Art. 43). • The system of family allowances paid to workers with large families, in accordance with the law (Art. 43). • The establishment of ordinary working hours, of eight hours per day and forty eight hours per week (Art. 44). • Establishment, by law, of the working conditions for minors and women (Art. 44). • Workers’ rights to paid weekly resting days, paid annual vacation leave, and severance pay, the right to regular legal bonuses and other special bonuses, and all other benefits dictated by law or the respective collective bargaining agreement (Art. 44). • Overtime pay (Art. 44). • The establishment of standards for nighttime work, as well as for work in unsanitary or hazardous conditions, as defined by law A( rt. 44). • Protective measures for working mothers, as defined by law (Art. 45). • The right to stable employment, such that workers may only be dismissed for a duly proven just cause, as set forth by law (Art. 48). • In all cases, the payment of remunerations and social benefits to workers shall take precedence over all the other obligations of the employers (Art. 49). • The right to form workers’ unions without prior authorization (Art. 51). • The right to engage in collective bargaining (Art. 54). • The legal force of collective bargaining agreements (Art. 54). • Workers’ right to strike, which is exercised in accordance with law (Art. 55). • The inalienable nature of workers’ recognized rights (Art. 57). • The principle of in dubio pro operario (Art. 57). Russian Law Journal Volume IX (2021) Issue 2 60
However, in the Political Constitution of 1993, protection of the fundamental right to work was reduced by eight sections in Chapter II: “On Social and Economic Rights,” found in Title I: “On the Person and Society.” These regulations provide less protection compared to the previous Constitution, due to the neoliberal economic model in which the new Constitution is rooted. While there is some overlap in terms of the recognition of rights and labor principles, there are also obvious absences, such as the following: • Work is no longer the main source of creation of wealth. • The elimination of poverty and the provision of protection against underemploy- ment. • The substitution of the acknowledgement of fair pay for an equitable and suffi- cient pay. • The elimination of the express prohibition against discrimination in all forms of employment and the explicit protection of equal treatment for which the State had previously been responsible. • The elimination of the State’s periodic adjustment of the minimum wage. • The elimination of the family allowance system in favor of workers with large families, in accordance with law. • The elimination of any mention of overtime pay (Art. 44). • The elimination of any mention of establishing standards for nighttime work or work performed in unsanitary or hazardous conditions, as defined by law A( rt. 44). • The provision that the law shall grant workers adequate protection against arbitrary dismissal instead of the right to stable employment. All of the foregoing provisions evidence the introduced changes and setbacks in terms of labor rights, in comparison to the Constitution of 1979; changes that have been gradually and partially offset by the interpretation work of the Constitutional Court in the judgment of cases. Even so, this court has not been immune to fluctuations in its case law due to the different stages it has experienced since the return of democracy in Peru, in the year 2000.
4. Peruvian Constitutional Court Rulings on Economic, Social, and Cultural Rights
Following the reinstatement of democracy after the fall of the authoritarian administration headed by former president Alberto Fujimori, the Constitutional Court has gone through more than one stage in the development of its case law to date, according to its different judges and certain external pressures by those in power at any given time. Obviously, the referred fluctuations have reflected on the quality and relevance of its judgments, upon settling specific or abstract cases, which have repercussions on the pacification or not of society’s conflicts of the highest social, political, economic, environmental, and cultural importance, as analyzed below. CÉSAR LANDA, ISABEL SÁNCHEZ 61
4.1. The State and its Form In Constitutional Court Judgment (STC) 0008-2003-AI/TC, issued during Peru’s consolidation as a democracy, the Constitutional Court weighed the constitutionality of Article 4 of Emergency Decree (Decreto de Urgencia) 140-2001, which allowed the State to fix minimum rates for the provision of domestic and international passenger and cargo land transportation services, by an Executive Order. In this judgment, the Constitutional Court argued that the Peruvian State, as defined by the Constitution of 1993, exhibits the basic characteristics of a social and democratic state under the rule of law (STC 0008-2003-AI/TC, p. 10). In terms of the State’s basic political ideologies, the court maintained that while this type of State acknowledges the basic principles and rights of a State governed by the rule of law, such as the right to liberty, “materializing this liberty is impossible if its establishment and formal guarantees are not accompanied by certain minimum conditions of existence that enable them to be effectively exercised” (STC 0008- 2003-AI/TC, p. 11). With regard to the teleological aspects of the social and democratic State governed by the rule of law – which the court qualified as a “political alternative in response to the liberal State” (STC 0008-2003-AI/TC, p. 12) that “assumes its basic precepts and grants it social duties at the same time” (STC 0008-2003-AI/TC, FJ 12) – it maintained:
The configuration of the social and democratic State under the rule of law requires two basic aspects: on the one hand, the existence of material conditions to achieve its goals, which requires a direct relationship with the State’s real and objective possibilities, along with active participation of the citizenry in State activity; and, on the other, the State’s identification with its social objectives, so that it may reasonably assess not only those contexts that justify its action, but also those that require its abstention, thereby preventing it from becoming an obstacle for social development. [p. 12]
The requirements of the social and democratic State under the rule of law include the social requirements, in the understanding that this type of State “is a state of social integration, which seeks to reconcile the interests of society and banish the classist antagonisms of the industrial system” (STC 0008-2003-AI/TC, p. 13). In subsequent judgments, such as STC 0048-2004-AI/TC, in which the court eva- luated the constitutionality of the Mining Royalties Act – Law 28258, it added that:
[…] in this type of state, the rights of the individual are not exclusive of the interests of society, given that one cannot occur without the other. It is, as such, a type of State that seeks to achieve social integration and reconcile the legitimate interests of society with those of the individual, given that it is the Russian Law Journal Volume IX (2021) Issue 2 62
supreme goal of society and the State to defend the individual and respect his dignity (Article 10 of the Constitution). [STC 0048-2004-AI/TC, p. 4]
In terms of the “social” content of this type of State, the same judgment refers that “the constitutional mandate which holds the State responsible for safeguarding the common good means that it must intervene to correct social inequities, so that all, and not just a few, may share the benefits of progress and economic development” (STC 0048-2004-AI/TC, p. 12). Finally, on said occasion, the court added that
the State’s role involves the defense of the common good and the public interest; the rational and sustainable exploitation and use of natural resources, which, as such, belong to the nation; and the implementation of actions aimed at fostering social equity. [STC 0048-2004-AI/TC, p. 12]
Hence, although the Constitutional Court has not linked Peru’s type of State with a classical socialist model, it has made reference to the “social” content of the Peruvian State, whereby minimum material conditions must exist for all so that the State is able to achieve its goals.
4.2. Material Equality With regard to material equality, the aforementioned judgment STC 0008-2003- AI/TC explicitly stated that the legislator’s bond with the fundamental rights is not only negative but positive as well, as outlined below:
[…] public authorities are able to revert conditions of inequality, or to put it another way, to reinstate the conditions of equality that may be arising in the country’s social reality, even if they are contrary to the Constitution and its aspirations. This criterion, of course, is also applicable in the economic sphere, in which according to the Constitution, the State has the obligation to adopt measures aimed at providing opportunities for development to those sectors suffering from any form of inequality (Article 59). [p. 15]
On this occasion, the Constitutional Court also noted that the promotion of material equality, along with the principle of liberty, must prevail in a social market economy “within a democratic order guaranteed by the state” (STC 0008-2003-AI/ TC, p. 16). Similarly, the Constitutional Court referred that the State is the promoter of equality among individuals (STC 01/03-2003-PI/TC, p. 12), that the State has the obligation to take measures in favor of those who have been neglected in order to restore the conditions of equal opportunities to which the Constitution aspires (STC CÉSAR LANDA, ISABEL SÁNCHEZ 63
0016-2002-PI/TC, p. 11). The court also stated that the notion of equality must be perceived in two convergent planes. In the first, equality acts as a guiding principle for the organization and actions of the democratic state under the rule of law; while in the second, it is a fundamental individual right (STC 261-2003-PA/TC, p. 3.1). In STC 1417-2005-PA/TC, upon developing the content and jurisdictional pro- tection of social rights – such as the fundamental right to receive a pension – the Constitutional Court maintained that the effort to ensure its specific content required a systematic analysis of the constitutional provision which recognizes this right together with the principles and values such as material equality and the right to dignity and solidarity (p. 36). In recent years, the Court ruled on a case (in STC 0853-2015-AA/TC) in which two sisters from a rural area in Peru were requesting to continue their high school studies on a regular basis, in a basic education center near to their home, since there was no other educational center specific to their age group (over eighteen years old) nearby. The court granted their petition, based on the principle of material equality, in view of the lack of education coverage (p. 58). Thus, it is clear that as far as material equality is concerned, the Peruvian Cons- titutional Court has failed to promote socialist constitutionalism. However, this has not prevented it from defending the Peruvian State’s role in taking measures to provide equal opportunities for social development to those suffering from inequality or discrimination.
4.3. Property In a wide range of case law, the Constitutional Court has highlighted the social function of private property, despite the fact that this function is not expressly included in the Constitution of 1993. Thus, for example, in the aforementioned STC 0008-2003-AI/TC, the Constitutional Court explicitly stated that “reference to the common good contained in Article 70 of the Constitution allows us to recognize the social function which the law grants to the property” (p. 26). Indeed, property is established not only as a subjective right, but also as an institutional guarantee, which entails the recognition of its social function (p. 26). The same ruling also stated that this social function “applies to capital goods and goods for public utilities, but not to consumer goods or private goods, in which only a strictly personal use is recognizable, in which case refraining from using such property to the detriment of the community shall suffice” T(S C 0008-2003-AI/TC, p. 26). As a result, the exercise of the right to property, which is not an absolute right, means that all legal limitations are aimed at equating:
• The right to personal property with the exercise thereof by all other individuals. Russian Law Journal Volume IX (2021) Issue 2 64
• The right to personal property with the exercise of all other individual liberties. • The right to personal property with the public order and the common good. [STC 0008-2003-AI/TC, p. 26]
In any case, the social function of private property has played a key role in the determination of its constitutionally protected content as a fundamental right. Thus, in STC 03258-2010-PA/TC, the court maintained that the right to property “vests its owner with the power to use, enjoy, exploit, and dispose of the property, provided that its use fulfills its inherent social function” (p. 3). In consequence, it is clear that, through its interpretation of the Constitution, the Constitutional Court has recognized that private property has a social function, even though invoking the influence of socialist constitutionalism was not necessary to that effect.
4.4. The Land Problem and the Indigenous Problem On certain occasions, the Constitutional Court has equated the land problem with the indigenous problem. For example, in STC 0022-2009-PI/TC, it referred that:
ILO Convention 169 aims to eradicate the development models that previously sought the assimilation of indigenous peoples to the dominant culture. This is not an attempt to situate the indigenous peoples in a position of superiority over the rest of the population, but rather to make sure that the indigenous peoples can effectively exercise the fundamental rights claimed in favor of society as a whole. While it is true that the indigenous peoples have existed since long before the creation of the Peruvian State, their presence has not implied their visibility or effective inclusion in the State’s development policies.T hus, the historical marginalization that these peoples have suffered must be borne in mind so that we can understand not only the indigenous peoples per se, but the laws drafted with the goal of protecting their particular sociological, cultural, political, and economic reality as well. As such, the protection granted by the convention focuses on those elements that are necessary and indispensable to preserve and guarantee the existence of indigenous peoples, without prejudice to their development and voluntary participation in the global economy. One example of this can be seen in the regulation of their land, the recognition of and respect for their identity, and the provision of higher levels of education, health, and quality of life. [p. 14]
This ruling establishes the primary aspects of the right of be informed of the indigenous peoples “when, in application of the provisions of the convention, CÉSAR LANDA, ISABEL SÁNCHEZ 65 legislative and administrative measures are proposed that may directly affect them” (STC 0022-2009-PI/TC, p. 19). While specifying that indigenous peoples do not hold the right of veto, the Constitutional Court explicitly established the main characteristics of the right to consultation:
a) good faith; b) flexibility; c) the goal of reaching an agreement; d) trans- parency; and e) prior implementation of the consultation process. These characteristics are also guiding principles. So, whenever legal loopholes are identified, these principles must be followed to ensure that they are fully enforced. Likewise, the absence of these elements related to the right to consultation must be construed as arbitrary and therefore unconstitutional. [STC 0022-2009-PI/TC, p. 26]
The Court also highlighted the following powers as the constitutionally protected content of this right: i) access to consultation; ii) respect for the essential characteristics of the consultation process; and iii) the guarantee of compliance with the agreements reached in the consultation process, specifying that “the content of this right does not include veto power over the legislative or administrative measure, or the right of the indigenous peoples to refuse to engage in the consultation” (STC 0022-2009-PI/TC, p. 37). In addition, the Constitutional Court also referred to the State’s obligation to delimit indigenous territories and to the issue of the abandonment of indigenous lands. Lastly, in the event of the expropriation of indigenous land – to the extent that not only the right to property is at stake but the right to the very existence of the indigenous peoples, the Court stated that:
[…] the State’s obligation must not be limited to the payment of fair compensation, but must go the extra mile, to secure a shared benefit. Granting them new land of an equal size and quality is not enough, since the indigenous peoples must benefit from the exploitation of their original ancestral territories from which they have been separated, thereby guaranteeing not only the continuity of their existence, but the improvement of their quality of life. It is only in this way that the expropriation of indigenous lands can be construed as justified, otherwise the members of such peoples may resort to the relevant legal channels to protect their rights. Likewise, this shall be taken into account when the compensation is the result of interventions in the property of indigenous peoples, as in the case of easements. [STC 0022-2009-PI/TC, p. 52]
Later the same year after issuing the foregoing judgment, the Constitutional Court passed judgment STC 0024-2009-PI/TC, in which it analyzed the constitutionality of Russian Law Journal Volume IX (2021) Issue 2 66
Legislative Decree (Decreto Legislativo) 994, that promoted private investment in irrigation projects for the expansion of agricultural lands. In this case, the Court dealt with the land and indigenous problems jointly, by referring:
The Court wishes to stress that the communal property of indigenous peoples cannot be based on the classical approach to “property” on which civil law is based. For indigenous peoples, the land is not a mere commodity, but a fundamental element with components of a spiritual, cultural, and social nature, among others. On their land, indigenous peoples develop their knowledge, subsistence practices, beliefs, and traditional forms of life that are passed on from generation to generation. The Court recognizes the value of the special relationship that indigenous people have with their land, and wishes to highlight the highly articulated nature of the right to communal property and other rights, such as the right to life, integrity, cultural identity, and freedom of religion. [STC 0024-2009-PI/TC, p. 18]
The court also explicitly stated that
in keeping with Article 13 of ILO Convention 169, upon applying the provi- sions of said convention, the State shall respect the particular importance that these peoples give to their relationship with their land or territory. [STC 0024-2009-PI/TC, p. 19]
Once again, the arguments made by the Peruvian Constitutional Court contain no express mention of any influence of socialist constitutionalism. Nevertheless, it could be said that by granting legal-constitutional protection to indigenous peoples, addressing the problem related to the recognition of and respect for their territories, cultures, etc., the Court’s actions meet the demands for the rights advocated by proponents of socialism in Peru to a certain extent.
4.5. Work The Constitutional Court has had its successes and failures when it comes to protecting the fundamental right to work.22 Soon after Peru’s return to democracy, in the arguments set forth in judgment STC 1124-2001-AA/TC (Case of the Telefónica Workers’ Union and FETRATEL), and especially in judgment STC 0976-2001-AA/TC (Case of Eusebio Llanos Huasco), the Constitutional Court established the mechanism to reinstate the workers to their
22 t his idea is explored in greater depth in Rosa Isabel Sánchez Benites, La jurisprudencia más destacada del Constitutional Court del Perú respecto al derecho a la protección adecuada contra el despido arbitrario (2018, unpublished). CÉSAR LANDA, ISABEL SÁNCHEZ 67 jobs, through amparo proceedings filed against cases of dismissal in violation of constitutional rights.23 In the first of these two judgments, the Court held that Article 34 of the Conso- lidated Text (TUO) of Legislative Decree (Decreto Legislativo) 728 – Labor Productivity and Competitiveness Act, passed by Executive Order (Decreto Supremo) 003-97- TR, violated the Constitution by establishing compensation as the “sole remedy” applicable in the event of an arbitrary dismissal (p. 12). According to this ruling, it was unconstitutional to limit obligations exclusively to compensatory protection. The Court added that “compensation shall be a complementary or substitute form of restitution where freely determined by the worker, but shall not be considered a remedy for an act that is invalid ab initio by virtue of its unconstitutionality” (p. 12).24 Later, in judgment STC 0976-2001-AA/TC (Case of Eusebio Llanos Huasco), the Court referred that Article 27 of the Constitution “does not establish the right to absolute job stability, that is, the right ‘not to be dismissed arbitrarily.’ It only recognizes the worker’s right to ‘adequate protection’ against arbitrary dismissal” (p. 11). For this reason, the judgment defined this right as legal, in the understanding that an adequate protection against arbitrary dismissal “requires that, whatever the options adopted in legislative terms, they must satisfy a minimum criterion of proportionality, or, as expressly established in the text of the Constitution, guarantee ‘adequate’ measures” (p. 11).25 Based on the foregoing, the Constitutional Court concluded that restitution resulting from arbitrary dismissals or the violation of certain fundamental rights recognized in the Constitution or human rights treaties are: a) null and void dismissal; b) dismissal without cause; and c) wrongful dismissal.26 In particular, this judgment states that null and void dismissal occurs in the following cases: • The worker is dismissed solely for being the member of a union, or for his or her participation in union activities. • The worker is dismissed solely for being a representative or candidate of other workers (or for acting in such capacity). • The worker is dismissed for reasons of discrimination based on his or her sex, race, religion, political views, etc. • The worker is dismissed for being pregnant (provided the dismissal occurs during her pregnancy or within 90 days after giving birth). • The worker is dismissed because he or she has AIDS (cf. Law 26626). • The worker is dismissed because he or she has a disability (cf. Law 27050). (p. 15) Aside from the foregoing judgments, the Constitutional Court has also acted to provide protection in labor matters in other cases, although it has also experienced
23 Sanchez Benites 2018, at 2. 24 Id. 25 Id. at 3. 26 Id. at 5. Russian Law Journal Volume IX (2021) Issue 2 68 setbacks, which are particularly visible in judgment STC 05057-2013-PA/TC (known as the Huatuco Case). According to this ruling, having verified the distortion of a civil or fixed-term employment contract, the government employee shall only be reinstated if he or she was hired by virtue of an public contest for a budgeted, vacant position for an indefinite term.I n practice, this requirement has been rendered ineffective for all those not seeking reinstatement to a position that forms part of the civil service and administrative career.27 Hence, it is clear that the Constitutional Court has guaranteed a relative degree of occupational peace between employees and employers, although there have been stages during which it has given the constitutional framework on the fundamental right to work a strong social content.
Conclusion
In the history of twentieth-century Peru, a socialist type of State has not been established at a Constitutional level, but this has not prevented the social issue from being addressed, especially in the Peruvian Constitution of 1979. The paradox here is that this commitment to social issues through a social and democratic State under the rule of law began in the country in the early 80’s, when the referred type of government was undergoing a global crisis, particularly evident in the Soviet Union’s so-called “Perestroika” and “Glasnost” reform policies and their corresponding impact on the socialist block. A crisis that led to the “fall of the Berlin Wall” in 1989 and the establishment of the “Washington Consensus,” forging a universal constitutional political model based on a free market economy, democracy, and human rights.28 The arrival of the 90’s decade in Peru not only implied the illegitimate repeal of the Constitution of 1979 and its social constitutionalism but the enactment of the new Constitution of 1993, which is based on an economically neoliberal and politically conservative model. Despite this, the rights that regulate the social issue in Peru have remained in place. Following the country’s return to democracy in 2001, the Peruvian Constitutional Court was able to give the Constitution of 1993 a social content, although the Court faced obstacles and setbacks along the way, especially in the form of pressure from different government administrations, as well as other, de facto powers starting in 2008. Accordingly, the Constitutional Court has gone through a number of stages, some more democratic than others. Its most outstanding rulings were issued during Peru’s stage of democratic consolidation (2002–2008), during which the Court clearly showed a commitment towards reaffirming the goals of a social and democratic state
27 Sanchez Benites 2018, at 15. 28 César Landa, Apuntes para una Teoría Democrática Moderna en América Latina 56 (1994). CÉSAR LANDA, ISABEL SÁNCHEZ 69 under the rule of law, in the form of material equality, the social function of property, the protection of peasant and indigenous communities and their territories, and the protection of the fundamental right to work, among other economic, social, and cultural rights, focusing on the very same matters at stake in political debates on the social issue and the propagation of socialist ideas in Peru during the first few decades of the twentieth century.
References
Andrews C. Un siglo de constitucionalismo en América Latina (1917–2017) (2017). De Lavalle J.B. Luis Felipe Villarán. El Maestro, el Jurista, el Magistrado (1923). Dussel E. El marxismo de Mariátegui como ‘filosofía de la revolución’ in El marxismo de José Carlos Mariátegui. Vº Congreso Nacional de Filosofía 27 (David Sobrevilla Alcázar ed., 1995). Flores Galindo A. Para situar a Mariátegui in Pensamiento político peruano (1987). León Barandiarán J.L. La Constitución Alemana de 1919 (1930). Lévano C. Las ocho horas. Historia real de una victoria exclusivamente obrera (2019). Lloredo Alix L. La recepción de Rudolf Von Jhering en Asia y Latinoamérica, 31 Anuario de Filosofía Jurídica y Social 5 (2016). Sánchez Benitez R.I. La jurisprudencia más destacada del Constitutional Court del Perú respecto al derecho a la protección adecuada contra el despido arbitrario (2018, unpublished).
Information about the authors
César Landa (Lima, Peru) – Professor of Constitutional Law, PontificiaU niversidad Católica del Perú and Universidad Nacional Mayor de San Marcos (1801 Universitaria Av., San Miguel, Lima, 15088, Peru; e-mail: [email protected]).
Isabel Sánchez (Lima, Peru) – Jurisdictional Advisor, Peruvian Constitutional Court (390 Jirón Ancash, Lima, 15002, Peru; e-mail: [email protected]). THE LEGACY OF SOCIALIST CONSTITUTIONALISM IN SLOVAKIA: THE RIGHT OF THE SLOVAK NATION TO SELF-DETERMINATION
TOMÁŠ GÁBRIŠ, Trnava University (Trnava, Slovak Republic)
https://doi.org/10.17589/2309-8678-2021-9-2-70-91
Albeit in 1918 the Slovak nation voluntarily became a “branch” of the single Czechoslovak nation and of the unitary Czechoslovak state, the connection with the Czechs was rather perceived as a strategic move until the Slovak nation develops its capacity for the execution of its own right to self-determination. In the context of Czechoslovakia being under pressure of Hitler’s Germany in 1938, Slovak autonomists managed to exploit the situation and Slovakia was granted autonomy within Czechoslovakia. Soon thereafter, in March 1939, an “independent” Slovak State was created, in fact being under direct control of Nazi Germany. The authoritarian political regime of the War-Time Slovakia was soon rejected by Slovaks themselves and the Slovak nation was rather willing to sacrifice its independence in order to return to the democratic regime of Czechoslovakia in 1945. Still, there were attempts to change the position of Slovaks and Slovakia within Czechoslovakia, which eventually materialized in the form of the federalization of the Czechoslovak Socialist Republic in 1968/69, giving Slovaks for the first time (apart from the Hitler-sponsored statehood in 1939–1945) their formal republican statehood, albeit only within a system of limited socialist federalism. Still, this allowed for a relatively simple change of this formal statehood into an internationally recognized independent Slovak Republic in 1993. The socialist constitutional recognition of self-determination of the Slovak nation in the form of a Socialist Republic thus paved the way to the currently existing Slovakia, hence making it the most important legacy of the (Czecho-)Slovak socialist history.
Keywords: Czechoslovakia; Slovakia; socialism; self-determination; independence; federation.
Recommended citation: Tomáš Gábriš, The Legacy of Socialist Constitutionalism in Slovakia: The Right of the Slovak Nation to Self-Determination, 9(2) Russian Law Journal 70–91 (2021). TOMÁŠ GÁBRIŠ 71
Table of Contents
Introduction: Post-Colonialist Analysis of the Status of Slovakia in Czechoslovakia 1. The Right to National Self-Determination 2. The Execution of the Right to Self-Determination by the Slovak Nation 3. The Slovak Nation in Czechoslovakia 4. A Socialist Federation and its Structural Problems Conclusion
Introduction: Post-Colonialist Analysis of the Status of Slovakia in Czechoslovakia
Marxist teaching and to a certain degree even the Marxist-Leninist heritage and the legacy of the period of actual (real) socialism are still omnipresent even in the current legal and philosophical thought – albeit not in a pure form but rather mixed and dialectically developed further. For example, post-colonial authors openly admit that their source of inspiration is the legacy of Marxism, and in addition to that they also often invoke feminism and postmodernism as their methodological background.1 In this vein they point out that it is a mistake to connect colonialism only with capitalism, as it was done by the Marxist-Leninist doctrine when identifying colonialism with the imperialism of capitalist powers2 and with the colonizing efforts of Western European countries. Nowadays, the term “colonial” and “postcolonial” is instead proposed to be used in a more general sense, revealing and rejecting any supremacy in inter-state and inter-cultural relations (and even inter-human relations if imbued also by elements of feminism). Thus, colonialism and post-colonialism in this postmodern, poststructuralist sense have a broader and intrinsically contradictory, dialectical meaning – not only denoting a prima facie meaning of relationship between Britain and India, Spain and “Indies” (Latin America), but rather denoting multi-directional and multi-layered interconnections that allow elements of colonial thought and of dominance or hegemony to be identified and revealed in colonies as well as in colonizing states. At the same time, this allows us to look for colonial and post-colonial elements even in states like those of Central and Eastern Europe that have nothing to do with colonialism at first glance.3 The elements of post-colonial or even neo-colonial thinking can thus allegedly be identified even in Eastern (East-Central) Europe,4 sometimes considered being
1 ania Loomba, Colonialism/Postcolonialism 5 (2nd ed. 2005). 2 Id. at 10–13. 3 Id. at 16–17. 4 rafał Mańko et al., Introduction: Law and Critique in Central Europe: Laying the Cornerstone in Law and Critique in Central Europe: Questioning the Past, Resisting the Present 1, 3 (2016). Russian Law Journal Volume IX (2021) Issue 2 72 a double periphery (peripheria duplex) – meaning both “Eastern Europe” as well as the westernmost part of the Soviet, socialist bloc.5 Socialist (constitutional) history and heritage might thus be viewed through a similar optic that was used originally by the socialist (Soviet) bloc countries when looking at colonialist countries of the West. Post-colonial power tensions can namely be identified even within the countries of the Soviet bloc – e.g. in the case of socialist Czechoslovakia, where there was a clear tension between the two united nations– the dominant Czech nation and the somewhat subordinate Slovak nation. In the very end, however, the respect for this tension and formal legal recognition of the right to self-determination for the Slovak nation in 1968/69 (federalization of Czechoslovakia) weakened this tension to a certain degree, albeit it still finally led to (a peaceful) disintegration of Czechoslovakia in 1992/93. In the following pages, the Slovak right to self-determination is legally recognized as a part of the Czechoslovak socialist constitutional legacy and will thus be looked at through a prism of post-colonialist optics which is itself a legacy of socialism (Marxist-Leninist theories of oppression). History and present thus overlap – being the essence of any “legacy.”
1. The Right to National Self-Determination
The right of a nation to self-determination is not a “Slovak invention.” The origin of this right can be found already in the context of the U.S. Declaration of Independence (1776) and in the French Declaration of the Rights of a Man and Citizen (1789). In practice, however, it was carried out in Europe only in the 19th century, especially in the context of the unification efforts of Italy and Germany.6 The very first official and practical application of the right of a nation to self-determination in the form of creating a national state allegedly occurred in 1830, when the world powers – Britain, France and Russia – recognized Greece, fighting for liberation from Ottoman rule, as an independent state.7 Subsequently, since the 1840s, the ideas of the collective rights of nations were also present in the Habsburg Empire, but still mostly respecting the traditional historical state borders.
5 Cf. Violeta Kelertas, Baltic Postcolonialism and its Critics in Baltic Postcolonialism 1 (Violeta Kelertas ed., 2006). German expansion to Eastern Europe was perceived similarly. See Simon Segal, Nazi Rule in Poland (1943); Wiebke Keim, Colonialism, National-Socialism and the Holocaust: On Modern Ways of Dealing with Deviance in Ari Sitas et al., Gauging and Engaging Deviance, 1600–2000 41 (2014). 6 Juraj Jankuv, Právo národov na sebaurčenie v kontexte judikatúry Výboru pre ľudské práva [The Right of Nations to Self-Determination in the Context of the Case Law of the Human Rights Committee] in Právo národov na sebaurčenie v kontexte moderného medzinárodného práva [The Right of Nations to Self- Determination in the Context of Modern International Law] 47–48 (2012). 7 d agmar Lantajová, Otázka sukcesie vo vzťahu k uplatneniu práva národov na sebaurčenie [The Question of Succession in Relation to the Exercise of the Right of Nations to Self-Determination] in The Right of Nations to Self-Determination in the Context of Modern International Law, supra note 6, at 90. TOMÁŠ GÁBRIŠ 73
The concept of the right to self-determination in the meaning of crossing traditional borders’ the status quo, i.e. the right to self-determination including the right to “tear- apart,” emerges specifically at the end of World War I. Vladimir Ilyich Ulyanov (Lenin) was already devoted to this topic in his works from the years 1915 and 1916, and subsequently, he expressed this right formally and in a legally binding way in the Decree on Peace of 26 October 1917 (8 November 1917). This decree suggested in one of its provisions that nations forcibly restrained in another state should have the right to freely decide on the form of their national existence.8 Approximately at the same time, the US president Woodrow Wilson expressed the recognition of the right to self-determination in his (non-binding) political declaration of “14 points” on 8 January 1918.9 The Transatlantic world was thus both legally as well as politically inclined to the possibility of the collapse of centuries-old monarchies, which actually took place in late 1918, foremost in the form of the collapse of the Austro-Hungarian monarchy, confirming the existence of the right of nations to self-determination. In the interwar period of the 20th century, nevertheless, the right to self-deter- mination was not enshrined in any international legal instrument. The Covenant of the League of Nations did not provide for this right.10 A milestone in expressing the right of nations to self-determination at the international level arrived with the so-called Atlantic Charter, adopted in 1941, by the U.S. President Roosevelt and the British Prime Minister Churchill, when they both declared their will to respect the right of nations to choose their form of government and to execute their sovereign rights, which had been forcibly restricted during World War II.11 Another important document of international law which addressed the issue of the right of nations to self-determination, was subsequently the U.N. Charter of 1945. Already in its Art. 1(2) the objectives and aims of the U.N. included a goal to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of nations.12 At least from the moment of adoption of the UN Charter, the right of nations to self-determination thus became an explicit integral
8 Jankuv 2012, at 48. 9 art. X: The peoples of Austria-Hungary, whose place among the nations we wish to see safeguarded and assured, should be accorded the freest opportunity to autonomous development. 10 the International Court of Justice in the Namibia case in 1971 stated that the true meaning of Article 22 of the Covenant of the League of Nations, albeit not explicitly invoked, was the right to self-determination. Jankuv 2012, at 49. 11 Id. at 50. 12 the Charter of the United Nations, Art. 1: The Purposes of the United Nations are: ... To develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, and to take other appropriate measures to strengthen universal peace; ... and To be a centre for harmonizing the actions of nations in the attainment of these common ends. Russian Law Journal Volume IX (2021) Issue 2 74 part of international law, being one of its fundamental principles.13 Some authors even consider this right to be ius cogens, although this is not universally accepted.14 Further development of this right and its expression in normative and policy texts took place again especially at the United Nations level. The U.N. General Assembly Resolution of 16 December 1952 emphasized that the right to self-determination is a prerequisite for the full exercise of fundamental human rights. The right of nations to self-determination was then further enshrined in the International Covenant on Civil and Political Rights (1966),15 and in the International Covenant on Economic, Social and Cultural Rights (1966),16 being embraced also by the socialist countries of the Soviet bloc. The concept of the right of nations to self-determination was also specifically emphasized in the U.N. Resolution 1514 (XV) of 1970, where this right was extended to colonial and non-independent nations, Soviet bloc countries thereby openly pointing to the oppressive nature of colonialism and imperialism of capitalist powers. The U.N. Resolution 1541 (XV) then referred to the obligations of the mother country, in particular the obligation to ensure a full degree of autonomy for the non- independent nations. Finally, the U.N. General Assembly Resolution No. 2625 (XXV) of 1970 contains the “Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the U.N. Charter,” whereby the Declaration states as one of its principles the principle of equal rights and self- determination of nations.17 This may also serve as evidence on the general acceptance
13 ian Brownlie, Principles of Public International Law 596 (1990). 14 adam Giertl, Štát in statu nascendi [State in the State of Education] in The Right of Nations to Self- Determination in the Context of Modern International Law, supra note 6, at 19. 15 international Covenant on Civil and Political Rights, Art. 1(1): All peoples have the right of self-determi- nation. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 16 international Covenant on Economic, Social and Cultural Rights, Art. 1: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 17 By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to TOMÁŠ GÁBRIŠ 75 of the right to national self-determination by both capitalist and socialist bloc countries alike. Interestingly, the socialist bloc countries and Communist Parties of Eastern Europe, Asia and Africa thereby claimed that it was actually the Marxist- Leninist teaching that made space and provided for tools for the world-wide liberation movement of oppressed states and nations all over the world. Even nowadays these ideas are accepted by leftist representatives of international legal scholarship building upon the Critical Legal Studies traditions and on the ideas of post-colonialism – thus still representing a clear socialist legacy in legal theory and in international law.
2. The Execution of the Right to Self-Determination by the Slovak Nation
Up to 1918, the position of the Slovak nation in Austria-Hungary (its eastern part, Hungarian Kingdom) was characterized by a lack of guarantees for freedom of national development. The collective rights of nations did not exist legally, and the individual rights of members of the nations were not effectively implemented due to various legal obstacles (e.g. limited right to vote, limited right to education, etc.). In such a situation, during the Great War (World War I), Slovak patriots did not hesitate to cooperate with the Czech national movement experiencing a similar situation with the Austrian (Germanizing) attempts to restrict Czech national equality. Ever since the early modern times, due to religious protestant cooperation between Czechs and Slovaks, and the use of Czech language among protestants in the territory of Slovakia, there already existed (albeit being minor in terms of its acceptance) the idea of a common Czecho-Slovak national unity, which also helped to streamline cooperation between the Czechs and Slovaks both before and during the Great War. In the Memorandum of the Slovak League of America (the Slovak national organization in the US) of 10 September 1914, however, the emigrant Slovaks still strived for the Slovak national independence without the Czech nation, requesting for “the Slovak nation a self-government and a freedom to work out its own destiny politically, educationally and economically.” 18 The innovation here is the use of the term
render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle ... The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self- determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter. 18 on details, see Jozef Beňa & Tomáš Gábriš, 1 History of Law in the Territory of Slovakia 204 (2008). “To secure to the Slovaks of Hungary the natural rights of life, liberty and the pursuit of happiness, which have Russian Law Journal Volume IX (2021) Issue 2 76
“self-government” together with “self-destination,” which replaced the previously established legal concept of “equality of nations of Hungary” being invoked in the previous political documents authored by Slovaks living in Hungary. The employment of this new legal concept is to be subject to further research, however, it appears it might have been influenced by the contemporaneous theories on the right of nations to self-determination, which ultimately came into general acceptance when Lenin and Wilson voiced their actual support for this right in the years of 1917/1918. Nevertheless, two subsequent agreements of 1915 and 1918 concluded between the Czech and Slovak migrants in the USA abandoned the idea of an independent Slovak state and instead called for the establishment of a common state of Czechs and Slovaks. The same objectives were followed since 1915 also by the Czechs and Slovaks in Europe. In particular, the Czechoslovak National Council in Paris had played an essential role in the establishment of the new Czechoslovak state and in its international recognition. Specifically due to forming allied military forces consisting of Czechs and Slovaks under the name of so-called “Czechoslovak legions,” the Czechoslovak National Council was soon recognized by the Allied powers as a representative of an allied nation, and as the future government of Czechoslovakia. The idea of a common state since then began to take priority also on the domes- tic ground – the Czech deputies in the Vienna Parliament publicly called for the federalization of the monarchy on 30 May 1917, whereby the Czech Lands and Slovakia were expected to form a common state – a member state of the Habsburg federation. Subsequently, in the 14 points of President Wilson declared in January 1918, the US president openly recognized the right of peoples of Austria-Hungary to self- determination, meaning a free option for the nations of monarchy to decide on their future, regardless of the integrity of the empire. This was a clear confirmation of the right of nations to self-determination. The culmination of the Czechoslovak fight for independence peaked in the “Washington Declaration of Independence of the Czechoslovak Nation” of 18 October 1918, already declared under the situation of recognition of the Czechoslovak National Council by France (the French Governmental Declaration of 29 June 1918 recognized the right of the Czechoslovak nation to independence), as well as by the United Kingdom (in August 1918), and the USA (in September 1918).
been denied them by the dynasty; to procure for them the opportunities to develop their national genius and aptitude as well as the natural resources of their native country; to assure to them the realization of their national ideals and aspirations, which have been up to this time ruthlessly trampled upon by the tyrannical Magyar government; which rights, opportunities and aspirations are considered inalienable by the present age and are so highly prized that millions of lives are being sacrificed and rivers of blood are being shed to secure and to perpetuate them. […] We demand for the Slovak nation a self-government and a freedom to work out its own destiny politically, educationally and economically. The idea of national identity, the principle of self-destination and self-government of and by every nation is stirring the world, and today no statesman, no state organization can oppose it with impunity or without detrimental consequences to the entire community.” Quoted from Albert Mamatey, The Situation in Austria-Hungary, 6(2) J. Race Dev. 203, 212 ff. (1915). TOMÁŠ GÁBRIŠ 77
In response to these documents, Slovak national representatives in the territory of Hungary could no longer await the establishment of Czechoslovakia passively – first on 19 October 1918 Ferdinand Juriga, Member of the Hungarian Parliament of Slovak nationality proclaimed that the Slovak nation invokes the right to self-determination, and a few days later, when Austria-Hungary surrendered, on 28 October 1918 the Czechoslovak state was spontaneously declared in Prague, supported additionally by Slovaks at their national meeting convened on 30 October 1918 in the town of St. Martin in the territory of Slovakia. The St. Martin Declaration thereby stated that the Slovak nation is a “part of the historically and culturally unified Czechoslovak nation” and for this nation it demanded the unlimited right to self-determination. The Slovaks have thus proclaimed their will to become a part of the Czechoslovak State as a state of one nation – the Czechoslovak nation – albeit mostly due to strategic reasons, the Slovak nation being politically and culturally underdeveloped.
3. The Slovak Nation in Czechoslovakia
Albeit in 1918 the Slovaks voluntarily became a “branch” of the single Czechoslovak nation and of the unitary Czechoslovak state, the desire for an ethnic Czechoslovak nation was in the minority among the Slovaks, and the connection with the Czechs was rather perceived as a strategic move until the Slovak nation develops capacity for the execution of the right to its own self-determination. Still, given the proclaimed Czechoslovak unity, there was an absence of any constitutional regulation of the position of Slovaks and Slovakia within Czechoslovakia. This turned out soon to be a problem. A number of proposals of legal solutions, pursuing the objective of the autonomous status of Slovakia was prepared and submitted to the Czechoslovak parliament in the 1920s and 1930s, but all of them were unsuccessful.19 Only in the context of a weakened Czechoslovakia after the surrender of the territory occupied by Germany in 1938, Slovak autonomists managed to use the situation and autonomy was finally granted to Slovakia through a Constitutional Act of 1938. Subsequently, on 14 March 1939, the autonomous Slovak parliament declared the independent Slovak State – this time under direct pressure from Hitler. Czechoslovakia disintegrated temporarily for the period until 1945. Strangely, however, the right to self-determination was not invoked in this respect by Slovak politicians at all, since the Slovak leaders realized the actual circumstances of the establishment of the Slovak state20 – being rather a brainchild of Hitler than of Slovaks themselves. The
19 See Jan Rychlík, Češi a Slováci ve 20. století: Česko-slovenské vztahy 1914–1945 [Czechs and Slovaks in the 20th Century: Czech-Slovak Relations 1914–1945] 104–106, 121, 138 (1997). 20 valerián Bystrický & Tomáš Gábriš, Valerián Bystrický & Tomáš Gábriš, Kontinuita a diskontinuita v dejinách: Slovenská republika 1939 a Slovenská republika 1993 [Continuity and Discontinuity in History: Slovak Republic 1939 and Slovak Republic 1993] in 20 rokov samostatnej Slovenskej republiky: Jedinečnosť a diskontinuita historického vývoja [20 Years of the Independent Slovak Republic: Uniqueness and Discontinuity of Historical Development] 49 (2013). Russian Law Journal Volume IX (2021) Issue 2 78 particular circumstances of its creation also contributed to the short-lived duration of this State. The authoritarian political regime led to its rejection by the Slovak nation which was rather willing to sacrifice its independence in order to return to the democratic regime of Czechoslovakia in 1945. Thus, the defeat of Germany in World War II brought as a consequence both the refusal of the imposed Protectorate of Bohemia and Moravia as well as of the allegedly independent Slovak state from the years 1939–1945, and the return to Czechoslovakia. Still given the previous experience, in 1945 this was not a return to a unitary Czechoslovakia built on the idea of Czechoslovakism but on the contrary, it recognized also the particular Slovak national identity. The experience of a Slovak state, although in non-standard conditions of World War II, was impossible to be deleted. The Slovak nation therefore enjoyed even after the year 1945 a certain level of autonomy within Czechoslovakia although this was soon deformed by the political centralism of the Communist Party of Czechoslovakia which ruled in Czechoslovakia from 1948 until 1989.21 The manifestation and proof of this was the destiny of the Slovak National Council (hereinafter referred to as “SNC”) as a state body for Slovakia. It was already established during World War II as an illegal body of Slovak resistance and of fight for the return to Czechoslovakia. It even organized an anti-Nazi Slovak National Uprising in 1944. Still, albeit it was not abolished after Czechoslovakia was re-established, it exerted only very limited competences for the territory of Slovakia based on both post-war constitutions of Czechoslovakia (1948 and 1960). Its status was only that of “the national authority of state power in Slovakia.” This meant that it was essentially an extended arm of the central state power located in Prague.22 At the same time, inscenated show-trials (monster- trials) with Slovak “bourgeois nationalists” in the 1950s did not leave anyone in doubt about the impossibility of the real independence of Slovak politics. Albeit the SNC remained a formally independent authority of state power in Slovakia, it was gradually forced to giving up and transferring its competences to the central authorities of the Czechoslovak Republic. This was performed by a series of three “Prague agreements.” The so-called first Prague agreement between the Prague government and the SNC came into force as of 2 June 1945. Subsequently, on 11 April 1946, the second Prague agreement was signed between Prague government and the SNC, further limiting the competences of the SNC. On the same day, the Constitutional Act no. 65/1946 on Constitutional Assembly was enacted, in which, for the very first time (!), the SNC was explicitly mentioned in a Czechoslovak text of constitutional relevance, previously being only accepted in the documents of political nature. The third Prague agreement, adopted within the so-called National Front (grouping of all political parties in Czechoslovakia) on 27 June 1946, again further limited the
21 Jozef Beňa, Vývoj slovenského právneho poriadku [Development of the Slovak Legal System] 343–346, 353 (2001). 22 Id. at 335–342. TOMÁŠ GÁBRIŠ 79 competences of the SNC, subordinating the SNC to the Czechoslovak government’s preventive control, while subordinating its Board of Trustees as an executive body of the SNC to the Prague government. Moreover, the agreement was also introducing parallel competences of the Trustees and of the Prague ministers in the same matters for the territory of Slovakia.23 All the activity of the SNC was thus at the end of the day subordinated to preventive and posterior control of the Prague government. The Board of Trustees of the SNC was in effect turned into an executive body of the Prague government. This, of course, eliminated any elements of federalism or autonomy that might have been present up to that date in Czechoslovakia. Instead, an evidently asymmetric model of Czecho-Slovakia was established in 1946 – should one not speak directly of paternalism, control or oppression, using post-colonialist terminology. Hence, since 1946, the position of the SNC as a national parliament, embodying a sovereign of Slovakia, was largely degraded. After the third Prague agreement, there even occurred a clear reduction in normative production (legislative activity – enacting of laws), while more than half of the published legal texts were only implementing regulations.24 Still, the SNC and its Board of Trustees remained a formal part of the Czechoslovak constitutional system. According to the Constitution of 9 May 1948, the Slovak National Council was a 100-member assembly elected for 6 years. However, under the same Constitution, it was entitled to exercise legislative power only in very limited fields. Interestingly, as for the mechanism of creation of the SNC, it is important to note that the SNC was elected neither during the wartime, nor after the war or after the enactment of the Constitution in 1948. Elections to the Czechoslovak National Assembly taking place on 30 May 1948 were only used for the calculation of the ratio of votes for the Communist Party upon which the SNC was supplemented, while individual representatives were delegated by political parties represented in the SNC without any elections. The parties could even withdraw their representatives from SNC at any time – a de facto imperative mandate was thus introduced for the SNC.25 Only on 28 November 1954 under the Act of the Slovak National Council No. 7/1954, finally the first general and direct elections to the SNC took place since its inception in 1943. Soon another important change in the position of the Slovak national authorities took place. In 1956, the resolution of the Central Committee of the Communist Party of Czechoslovakia from 30 March 1956 entrusted the political bureau of the
23 on the Prague agreements, see Martin Kvetko, Dohody o štátoprávnom usporiadaní pomeru Čechov a Slovákov v oslobodenej vlasti [Agreements on the State Law Arrangement of the Relationship Between Czechs and Slovaks in the Liberated Homeland] (1947). 24 Beňa 2001, at 282, 286. 25 m ichal Barnovský, Slovenské národné orgány v čase vyvrcholenia mocenskopolitických zápasov (jeseň 1947 – február 1948) [Slovak National Authorities at the Time of the Culmination of Power-Political Struggles (Autumn 1947 – February 1948)] in Slovenské národné rady [Slovak National Council] 147 (1998). Russian Law Journal Volume IX (2021) Issue 2 80
Central Committee of the Communist Party to introduce measures increasing the powers of the Slovak national authorities and, similarly, of the regional and district committees. These issues were also addressed by the National Communist Party Conference, which was held on 11–15 June 1956. In the government’s declaration, the increase in powers of the Slovak authorities was presented as the prerequisite for the success of the planned development of the economy and culture in Slovakia and as a further step to consolidate the unity of the Republic and to deepen the fraternal relations of the two nations.26 However, the impetus to adjust the position of the Slovak authorities in 1956 did not stem from the actual fundamental need to change the position of the Slovaks and Slovak authorities, but rather from the necessity of the internal stabilization of the state after the critique of Stalinism voiced in mid 1950s in the USSR. According to the respective Constitutional Act no. 33/1956 of 31 July 1956 on the Slovak National Authorities, the SNC was still “the national authority of state power in Slovakia.” In fact, this was still to mean that it was essentially only an extended arm of the centralized state power seated in Prague. Moreover, as soon as the shock from the horrors of Stalinism weakened, the Czechoslovak Communist Party leaders once again reinforced the centralization of the Republic in its new Constitution of 11 July 1960. New limitations of Slovak national authorities reflected in this new “Socialist Constitution” were preceded by political reasoning approved by the political bureau of the Central Committee of the Communist Party of Czechoslovakia on 2 February 1960.27 The reasoning stated that the Slovak National Council was to become a national authority of state power and administration in Slovakia as an “inseparable part of the unitary net of Czechoslovak state authorities.”28 The cancelling of the traditional Slovak authority of the executive power, Board of Trustees was hidden in this statement. The SNC Presidency was to become the new executive body of the SNC instead of the Board of Trustees. Thus, the SNC itself embodied both legislative and executive power – following the idea of the unification of state power in the spirit of the Marxist-Leninist ideals. In fact, however, Party bureaucracy and state bureaucracy prevailed in their informal competences above any formal competences and powers of any of the parliaments of Czechoslovakia (either the National Assembly or the SNC).29 Article 4
26 Beňa 2001, at 333–334. 27 Jan Pešek, Politický vývoj na Slovensku: od prevratu 1948 do prelomu rokov 1967/68 [Political Development in Slovakia: From the Coup of 1948 to the Turn of 1967/68] in Rok 1968 a jeho miesto v našich dejinách [1968 and its Place in Our History] 12, 29–31 (2009). 28 michal Štefanský, Postavenie SNR v rokoch 1948–1967 [The Position of the SNR in 1948–1967] in Slovak National Council, supra note 25, at 156. 29 Pavel Peška, Úvahy nad popřením ústavnosti v letech 1948–1989 [Reflections on the Denial of Constitu- tionality in 1948–1989] in Vývoj práva v Československu v letech 1945–1989: sborník příspěvků [The Development of Law in Czechoslovakia in 1945–1989: Proceedings] 192, 202–203, 206 (2004). TOMÁŠ GÁBRIŠ 81 of the 1960 Constitution clearly expressed the leading role of the Communist Party of Czechoslovakia:
The leading power in the society as well as in the state is the working class vanguard, the Communist Party of Czechoslovakia, voluntary association of the most active and most conscious citizens from among the workers, agrarians and intelligence.
This in itself encrypted the obviously secondary position of the Czechoslovak parliament, and a tertiary position of the Slovak representative authority, the SNC, albeit the Czechoslovak Socialist Republic (this new name of the Republic was confirmed by the 1960 Constitution) was, in accordance with the constitution, a single state of two equal brethren nations, the Czech and the Slovaks. The inequality of the parliaments, along with the asymmetry of the Communist Party – in favour of the Prague-seated Communist Party of Czechoslovakia and at the expense of Bratislava and the Communist Party of Slovakia, both confirmed the asymmetric “autonomy” of Slovakia. In accordance with the modifications introduced in the Constitution of 1960, within the scope of the SNC was to enact laws only “in subject matters of a national or regional character,” and only “if the general economic and cultural development of Slovakia required a particular modification.”30 These mentioned conditions actually paralyzed and minimized the activities of the SNC. In comparison with the situation from prior to 1960, the SNC did not even approve the plan of development of the national economy, nor Slovakia´s budget. Such a modification was in accordance with the constitutional concept of Czechoslovakia as a unitary, centralized state with only a formal, or rather “virtual” acceptance of Slovakia’s autonomous position.31 Some subsequent changes in the years 1964–1967 were merely of a quantitative nature – they broadened the sections of state administration under the control of the SNC or increased the number of executive committees of the SNC. The unitary centralized nature of the Czechoslovak state remained untouched.32 It was only with the process of democratization in the 1960s, connected also with the rehabilitation of the so-called Slovak bourgeois nationalists33 that the Party came up with reflections about a new position of Slovakia in Czechoslovakia. This started with a decision of the Central Committee of the Communist Party of Czechoslovakia from 7 May 1964 with the title “For a better use of the Slovak National Council”. This marked the beginning of works which eventually ended with the federalization of
30 Cf. Jozef Beňa, Diskontinuitná kontinuita slovenských ústavných dejín [Discontinuous Continuity of Slovak Constitutional History] 146–147 (2014). 31 Id. at 149. 32 Beňa 2001, at 343–346, 353. 33 Pešek 2009, at 32–38. Russian Law Journal Volume IX (2021) Issue 2 82
Czechoslovakia. The culmination of these reflections and intentions peaked in 1968 when the Communist Party of Czechoslovakia in cooperation with the SNC confirmed this direction of legal evolution – first, the NS C made its own announcement on 15 March 1968 on the necessity of a federal arrangement of Czechoslovakia and subsequently the Action plan of the Communist Party of Czechoslovakia from 5 April 1968 was approved which aimed against the asymmetry in Czecho-Slovak relations.34 The result was – after briefly considering other possible constitutional solutions – the Constitutional Act on the Czechoslovak Federation No. 143/1968, sometimes referred to as “the small constitution” which changed the unitary state into a triple one – Czech, Slovak and federal.35 This transformation to the compound state was prepared by the Constitutional Act No. 77/1968 on the preparation of the federal arrangement of the Czechoslovak Socialist Republic. Based on this law, the tasks related to the preparation of the federal arrangement were entrusted to the Czech National Council and the SNC as national authorities of the Czechs and Slovaks. The Czech National Council had not existed until then and it was only set up in 1968 as a temporary institution of the constitutional political representation of the Czech nation. Its task was basically only to formally express the Czech national political position to the arrangement of relations between the Czech and the Slovak nation. The Czech National Council was elected by the National Assembly from among the members of the National Assembly elected in the Czech regions and from other significant representatives of the public life from the Czech nation who were not members of the National Assembly. In contrast to the Czech National Council, the SNC was created on the basis of general elections.36 The Constitutional Act on the Czechoslovak Federation37 was approved on 27 October 1968 and signed on 30 October 1968, on the 50th anniversary of the Martin Declaration, by which the Slovak nation as “a part of the Czechoslovak nation” declared its will to join Czechs and create a common Czechoslovak state in 1918. The Constitutional Act was published under the number 143/1968 claiming it is
recognizing the inalienable right for self-determination until the division and respecting the sovereignty of every nation and its right to freely create the manner and form of its national and state life.”
34 See documents in Jozef Žatkuliak, Federalizácia československého štátu 1968–1970: Vznik česko- slovenskej federácie roku 1968 [Federalization of the Czechoslovak State in 1968–1970: Establishment of the Czech-Slovak Federation in 1968] 33–39 (1996). 35 Peška 2004, at 207. 36 Beňa 2001, at 358. 37 o n its preparation see Rychlík 1997, at 236; Stanislav Sikora, Československá jar 1968 a Slovensko [Cze- choslovak Spring of 1968 and Slovakia] in 1968 and its Place in Our History, supra note 27, at 82. TOMÁŠ GÁBRIŠ 83
The lawgivers were further
convinced a voluntary federative state union responds to the right for self-determination and equality and is the best guarantee for our full inner national development and the protection of our national separateness and sovereignty.
According to the preamble to the Constitutional Act on the Czechoslovak Federation, it was an agreement of the Slovak and the Czech nations who used and performed their national sovereignty and their right for self-determination with the aim to create a joint federation. In fact, however, the whole process went the other way round – from above. The unitary state was changed into a federation by a decision of the Communist Party of Czechoslovakia. Still, this was at the same time convenient for the Slovak nation as it answered its calling from “below.” But this was not the case with the Czech nation which felt more identified with the idea of a unitary Czechoslovakia, at most with a weak autonomy for Slovakia. Hence, without the intervention of the Party, the federalization would have never materialized. As a consequence, in spite of the fact that the asymmetric system changed formally into a symmetric federation of two national republics, the real Czech Socialist Republic, clearly distinguishable from Czechoslovakia was never fully formed. This was also due to the system of distribution of state power and competences within the federation, which made the member republic rather a formal creature: Formally, the competencies were divided into exclusively federal ones, common (shared between federation and republics) and exclusively republican. Foreign policy, national defence, federal material reserves, federal laws and administration, control of the federal authorities’ activities and protection of the federal constitution belonged to the exclusive scope of the federal authorities, naturally. Planning, finances, foreign economic relations, industry, agriculture and nutrition, transport, postal services and telecommunications, science and technology, labour issues and social politics, issues of measures and weight, inner order and state security, press and other information resources belonged to the scope of common competences shared by the federal and republican bodies. The republican National Councils (Czech one with 200 members of parliament and the Slovak one with 150 members) were elected for four years and were entrusted to decide on constitutional and other laws of the republics, to follow up how they are implemented by the local authorities, they were to approve fundamental issues of internal politics, a medium-term national economic plan and the state budget, examine its fulfilment and approve the final state account of the republic, elect and dismiss the Head of the National Council and other members of its leadership, discuss the republican government plan and control its activities, establish new ministries and other central institutions of the state administration, elect and dismiss the members of the Constitutional Russian Law Journal Volume IX (2021) Issue 2 84
Court and establish an authority to control the National Council. Due to the fact that constitutional courts were not established, the exclusive competence of the republics basically only comprised the issues of health, education and culture, given the gradual limitations of their competences by laws introduced in 1969 and 197038 that centralized the executive power by giving the federal government the right to veto or cancel activities of national governments that would oppose the measures of the federal government.39
4. A Socialist Federation and its Structural Problems
The importance, or better say the lack of it, of Slovak national institutions, in particular of the SNC and of the republican government of Slovakia within the Czechoslovak Federation was determined not only by the above mentioned limitation of powers of republican authorities. Their importance was limited essentially, structurally – by the nature of the representative authorities, including parliamentary institutions in the socialist Czechoslovakia and in any socialist country of that period. The idea of popular representation generally reflects the concept of the sovereignty of the people, which is materialized in electing the representatives of the people – in particular the members of parliament. The representative body as bearer of “the totality of the power”40 should therefore take the position of the strongest institution of a state whose legitimacy comes directly from the people. But in the conditions of Czechoslovakia, this clashed with the problem of a class understanding of sovereignty and a class and party view on the representative bodies:
The axiom of sovereignty of the working people means above all a constitutional responsibility of all representative bodies, of the whole set of representative bodies, to the working people. But also … the responsibility of all state institutions including the representative bodies to the Marxist- Leninist party...41
Even the right to vote itself, on the basis of which the representative bodies were created, had certain specific features. In the first place, elections, as based on the official doctrine, did not have the features of a fight for political power.T he issue of
38 Ján Uher, Slovenská národná rada v roku 1968 [Slovak National Council in 1968] in Slovak National Council, supra note 25, at 166, 185–186. 39 Jaromír Císař & Vladimír Kindl, Vývoj zákonodárství na území ČSR 1945–1990 [Development of Legislation in the Czechoslovak Republic in 1945–1990] in Příspěvky k vývoji právního řádu v Československu 1945– 1990 [Contributions to the Development of the Legal Order in Czechoslovakia 1945–1990] 91 (2003). 40 v áclav Pavlíček at al., Ústavní právo a státověda II. díl [2 Constitutional Law and Political Science] 216 (2008). 41 Stanislav Zdobinský & David L. Zlatopolskij, Ústavní systémy socialistických zemí [Constitutional Systems of Socialist Countries] 215 (1988). TOMÁŠ GÁBRIŠ 85 power was clearly decided in favour of the working class. Therefore, the elections could not decide on a possible change of power balance. Their meaning was different – to choose and to elect the representative bodies the best representatives of the working class, from among the workers, the cooperative farmers and working intelligence. The so-called National fronts participated in the preparation and organization of the elections in Czechoslovakia – a federal one and two republican National fronts. They not only participated in the preparation and organization of the elections, but also on the selection and registration of candidates, on determination of the election results and also on the dismissal of members of parliament. They also designed the electoral programmes for the representative bodies’ elections. This was to ensure that the representative bodies expressed only such individual will that was not opposed to the interests of the whole society, foremost the interests of the construction of socialism and communism.42 National Front(s) (hereinafter referred to as “NF”) thus represented a shadow representative body, putting the importance of the parliaments into third place after the Communist Party of Czechoslovakia and NFs. Since the constitution of 1960, the NF was also an official constitutional body, within which the leading position was reserved to the Communist Party of Czechoslovakia.43 The NF’s position as a constitutional body representing a corporate representative body with shadow functions of the parliament materialized also in the right to nominate candidates for judges from between professional judges as well as lay judges from among citizens. The NFs even nominated members of federal and republican governments and also could propose the dismissal of particular members of governments.44 This meant a fundamental change in the nature of traditional parliamentarism where the cabinet of ministers (government) is responsible to the parliament and depends on the confidence voiced by a majority of the members of the parliament.45 In contrast, in Czechoslovakia, the governments were responsible first to theN F as a shadow representative body, and only then to the parliament (be it federal or republican ones). The activities of the federal as well as the republican parliaments were only minor even after the federalization. Lenin’s ideal of the so called working parliament in which a fundamental part of the work is performed in the parliament as opposed to the so called debating parliament where a fundamental part of the decisions and parliamentary work is performed backstage, was not fulfilled.I n fact, Czechoslovak
42 Ľubor Cibulka, K obsahu pojmu socialistický zastupiteľský organ [On the Content of the Concept of Socialist Representative Body], 66(8) Právny obzor 654–655 (1983). 43 Jaroslav Chovanec, Postavenie Národného frontu v politickom systéme Československej socialistickej federácie – ČSSR [The Position of the National Front in the Political System of the Czechoslovak Socialist Federation – Czechoslovakia], 59(10) Právny obzor 880 (1976). 44 Id. at 882. 45 Jiří Boguszak & Zdeněk Jičínsky, Struktura státní moci [Structure of State Power], 105(5) Právník 396 (1966). Russian Law Journal Volume IX (2021) Issue 2 86 parliaments neither before nor after federalization were working ones. However, they were also not debating ones. Even socialist experts namely recognized that “Federal Assembly performs the politics of the Communist Party of Czechoslovakia,” 46 which means that all fundamental issues of the country’s direction and management were decided by the Central Committee of the Communist Party of Czechoslovakia. Even the electoral programme designed by the NF was in fact prepared under the leadership of the Communist Party of Czechoslovakia. The same was the case on national, republican levels. The practical side of a “non-working and non-debating” parliament is obvious from the minutes of the National Assembly meetings, or later Federal Assembly or National Council meetings. Basically all decisions were approved unanimously and without any comments. The Federal assembly was also in addition completely paralyzed by the fact that the Communist Party of Czechoslovakia evaluated in detail each and every draft bill even before their final (more or less formal) approval in the parliament.47 Due to all of the above mentioned reasons, it is clear that the executive power and its institutions, represented by the government headed by the prime minister, either on a national level or a federal level, were degraded in a similar way. The ideal of socialism was namely a complete unity and potentially even merging of representative bodies with the executive ones so that only one body was to both approve fundamental resolutions of a general character and also to implement these.48 This was claimed to be a sign of the so-called principle of unity of the state power, which reflects the theory that the state power and people are united and inseparable in a socialist state.49 The sovereignty of unitary people requires that there is only one sovereign will and this will needs to be internally non-contradictory and therefore indivisible. That is the reason why any division of power and system of breaks and balances must be rejected. Instead of the division of power, socialist bodies recognized at most “a distribution of work” in the execution of a single and inseparable power aimed at the attainment of the ultimate goal of reaching communism. This was also the argument used when abolishing the Board of Trustees of the Slovak National Council in the Constitution of 1960. Even after the federalization, when the new highest executive power of the national state power was in the hands of republican governments, resembling classical parliamentarism, the state authorities and also constitutional doctrine insisted expressly on the unity of will and interests of all working people and on a single system of state
46 Stanislav Zdobinský et al., Státní právo ČSSR [State Law of the Czechoslovak Socialist Republic] 196 (1985). 47 František Cigánek, Předlistopadový parlament ve světle archivní dokumentace [The Pre-November Parliament in the Light of Archival Documentation] in Dvě desetiletí před listopadem 89 [Two Decades Before November 89] 57, 59–62 (1993). 48 Boguszak & Jičínsky 1966, at 397. 49 Zdobinský & Zlatopolskij 1988, at 177. TOMÁŠ GÁBRIŠ 87 power.50 This was seen to be manifested in the cooperation of the authorities instead of their mutual control, and also in their mutual dependence and in the relations of subordination where there was no space for independent activities and the agenda of any of the authorities of legislative or executive power. This can be shown in the example of the activities of the National Assembly at the beginning of the 1960, within the debate and approval of the government plan of Lenárt’s government in 1960. The newly formed government appeared before the National Assembly with Jozef Lenárt’s speech and the following activity of the National Assembly was a proof and confirmation of the concept of a single state power – no objections were raised on the speech of the Prime Minister, and additionally one of the members of the Assembly proposed to express their consent to the speech without any debate. The speech was then approved unanimously. Four years later, this method was applied in the same way. The newly created government headed again by Lenárt comes before the National Assembly with the request for a statement of confidence, but at the same time asserts unity of the interests of the representatives of both elements of power:
In accordance with the constitution of our socialist republic, the govern- ment of the republic comes before the National Assembly to present its plan and request for a statement of confidence and active support in our work. We come before you – the elected representatives of the people – conscious of the government’s responsibility to the National Assembly and its obligation to present our activities as bound by the constitution. I want to say in the name of the government that in our activities we shall scrupulously keep these principles ... We base this on the basic fact of our society that the National Assembly as well as the government fulfil the people’s will, represent their interests and express their convictions.51
A more classical concept of parliamentarism with an actual use of parliament´s supremacy over the other components of power was visible only for a very short time in 1968. When the newly formed government appeared before parliament with its programme and a request for a statement of confidence, the PrimeM inister Černík announced the government would allow itself to be controlled more by the National Assembly than previously and promised to allow it to influence the government´s activities, for example when submitting government bills.52 The content
50 Stanislav Matoušek et al., Štátne právo socialistických krajín [State Law of Socialist Countries] 312 (1984). 51 Úterý 23. června 1964 [Tuesday, 23 June 1964] (Mar. 9, 2021), available at http://www.psp.cz/eknih/ 1964ns/stenprot/001schuz/s001007.htm. 52 Programové prohlášení vlády [Government Program Statement] (Mar. 9, 2021), available at https:// www.vlada.cz/assets/clenove-vlady/historie-minulych-vlad/prehled-vlad-cr/1960-1990-cssr/oldrich- cernik-1/ppv-1968-cernik1.pdf. Russian Law Journal Volume IX (2021) Issue 2 88 of this announcement was based on the Action plan of the Communist Party of Czechoslovakia in which perhaps for the first time appears as one of its principal agenda item the necessity of the division of power as a guarantee against wilfulness (!).53 The debate on this government agenda represents probably the longest parliamentary debate in socialist history which lasted for four days (23–24 April and 3–4 May) and in which 72 members of parliament participated. Attention should also be paid in this regard to the speech of the 1st Secretary of the Central Committee of the Communist Party of Czechoslovakia, Alexander Dubček, who was the first one to oppose the concept of a single state power and called for a division of power and respect for the sovereignty of the people enshrined in the National Assembly. For obvious reasons, these bold plans and statements never materialized. They were voiced at the peak of the democratization process in Czechoslovakia, which was soon halted. Starting from the 1969, again a process of normalization took place, which only allowed for one bold strategic plan from the period of the “Prague Spring” to be finished – namely that of the federalization of Czechoslovakia. The transformation of Czechoslovakia into a federation and the creation of the Slovak Socialist Republic as a member state of the Czechoslovak federation remained the only visible outcome of the democratization process. Still, it remains true that even this republic and its formal arrangement was rather formal and virtual – until the fall of the Communist Party and subsequent revival of all the formal bodies and institutions in Czechoslovakia.
Conclusion
In the process of the federalization of Czechoslovakia in 1968/69, Slovaks have basically acquired only a formal statehood in the form of a member state of the Czechoslovak Federation. Still, this was a good starting point after the fall of the Communist Party’s monopoly of power a mere 20 years after the federalization – in 1989. However, the democratic changes have also brought about a sudden release of the pressure accumulated in the previous decades between the various federal and republican bodies and authorities, but also between the two nations of the Czechoslovak federation, which were hidden until then under the Party cover. The pressures quickly escalated into a number of controversies on the competences of the republican and federal authorities, but also on the name of the federation, and on various long-term objectives of the federation, ultimately leading to the collapse of Czechoslovakia in 1992. The arguments connected to the division of competences within the federation, the pursuit of visibility by Slovaks in international fora, as well as disputes concerning the official name of the state in order to emphasize the role of Slovaks jointly led to
53 See Jan Gronský, Komentované dokumenty k ústavním dějinám Československa III 1968–1989 [Commented Documents on the Constitutional History of Czechoslovakia III 1968–1989] 98–100 (2007). TOMÁŠ GÁBRIŠ 89 the weakening of the bond between the two nations. In this atmosphere, on 17 July 1992, the Slovak Republic used its authority and bodies which were previously only formal ones in the conditions of a socialist federation and approved the Declaration of Sovereignty of the Slovak Republic. It proclaimed, and respectively attested, the inherent right to self-determination for the Slovak nation.54 The route to the division of Czechoslovakia was set straight from that moment on. On 1 September 1992 the Slovak Constitution was adopted. On 25 November 1992, at the federal level, an agreement between political leaders of the Czechs and Slovaks on the adoption of the Act on the dissolution of the Czech and Slovak Federal Republic was reached, according to which
upon the expiry of 31 December 1992, the Czech and Slovak Federal Republic shall cease to exist. Successor states of the Czech and Slovak Federal Republic shall be the Czech Republic and the Slovak Republic.
The expiry of 31 December 1992 hence witnessed the final execution of the right of the Slovak nation to self-determination. Compared to the situation in 1918, however, this was no execution of the right against the will of the “mother country,” but rather a mutual agreement to end the joint constitutional partnership of two equal nations, which, even after gaining independence, still maintain high-profile international political, economic, and cultural relations on the platform of their membership in the European Union. Still, it is apparent that the smooth and fully legal and peaceful disintegration and recognition of the self-determination of the Slovak nation was possible mainly due to the socialist constitutional legacy of the federalization of Czechoslovakia, with the already existing Slovak Socialist Republic, albeit only a formal one, and only existing at the constitutional and not at the international level. There was namely a clear continuity visible and preserved between the Slovak Socialist Republic of 1969 and the independent Slovak Republic of 1993 – this is also manifested in the invocation of the right to self-determination in both the preamble to the 1968 Constitutional Act on Federalization55 as well as in the preamble to the 1992 Constitution of the present-day Slovak Republic.56 Even the parliament of Slovakia in federal conditions,
54 See Eric Stein, Česko-Slovensko: konflikt, roztržka, rozpad [Czechoslovakia: Conflict, Disintegration] 164, 167, 179, 211–212 (2000). 55 ... recognizing the inalienability of the right to self-determination until separation and respecting the sovereignty of each nation and its right to shape freely the way and form of its national and state life, convinced that a voluntary federal state link is an appropriate expression of the right to self-determination and equality, but also the best guarantee for our full internal national development and for the protection of our national identity and sovereignty ... represented by our representatives in the Czech National Council and the Slovak National Council, we agreed to form a Czechoslovak Federation. 56 We, the Slovak nation, bearing in mind the political and cultural heritage of our ancestors and the centuries of experience from the struggles for national existence and our own statehood, mindful of the spiritual heritage of Cyril and Methodius and the historical legacy of Great Moravia, recognizing the natural right Russian Law Journal Volume IX (2021) Issue 2 90 the SNC, maintained its identity with the new parliament of the independent Slovak Republic – only changing its name from SNC to the National Council of the Slovak Republic. Otherwise, its continuity was preserved, just as all the international treaties and obligations of Slovakia dating to the period from before 1993 were accepted and taken over. It can therefore indeed be claimed that the federalization of Czechoslovakia in 1968/69 in fact paved the way to the proclamation of an independent Slovakia in 1992/93 – due to the establishment of a formal Slovak Socialist Republic within the Czechoslovak federation, where the Slovak nation could have tested its ability of (limited) self-determination, self-regulation and self-governance, to be subsequently fully materialized after 1989 – as of 1 January 1993. In this sense, the right of the Slovak nation to self-determination truly represents a still vivid and continuously existing socialist constitutional legacy in the present-day Slovakia.
Acknowledgments
This paper is a partial research outcome of the project APVV-15-0349 Indivíduum a spoločnosť – ich vzájomná reflexia v historickom procese.
References
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of nations to self-determination, together with members of national minorities and ethnic groups living on the territory of the Slovak Republic, in the interest of lasting peaceful cooperation with other democratic states, seeking the application of the democratic form of government, guarantees of a free life, development of spiritual culture and economic prosperity, that is, we, the citizens of the Slovak Republic, Adopt through our representatives this Constitution … TOMÁŠ GÁBRIŠ 91
1989: sborník příspěvků [The Development of Law in Czechoslovakia in 1945–1989: Proceedings] 192 (2004). Segal S. Nazi Rule in Poland (1943). Sikora S. Československá jar 1968 a Slovensko [Czechoslovak Spring of 1968 and Slo- vakia] in Rok 1968 a jeho miesto v našich dejinách [1968 and its Place in Our History] 82 (2009). Štefanský M. Postavenie SNR v rokoch 1948–1967 [The Position of the SNR in 1948– 1967] in Slovenské národné rady [Slovak National Council] 156 (1998). Stein E. Česko-Slovensko: konflikt, roztržka, rozpad [Czechoslovakia: Conflict, Disintegration] (2000). Uher J. Slovenská národná rada v roku 1968 [Slovak National Council in 1968] in Slovenské národné rady [Slovak National Council] 166 (1998). Žatkuliak J. Federalizácia československého štátu 1968–1970: Vznik česko-slovenskej federácie roku 1968 [Federalization of the Czechoslovak State in 1968–1970: Establishment of the Czech-Slovak Federation in 1968] (1996). Zdobinský S. & Zlatopolskij D.L. Ústavní systémy socialistických zemí [Constitutional Systems of Socialist Countries] (1988). Zdobinský S. et al. Státní právo ČSSR [State Law of the Czechoslovak Socialist Repub- lic] (1985).
Information about the author
Tomáš Gábriš (Trnava, Slovak Republic) – Professor, Head of Department of History of Law, Faculty of Law, Trnava University (23 Hornopotočná, Trnava, 918 43, Slovak Republic; e-mail: [email protected]). CHINA’S SOCIALIST UNITARY STATE AND ITS CAPITALIST SPECIAL ADMINISTRATIVE REGIONS: “ONE COUNTRY, TWO SYSTEMS” AND ITS DEVELOPMENTAL IMPLEMENTATION
PUI-YIN LO, University of Hong Kong (Hong Kong, China)
https://doi.org/10.17589/2309-8678-2021-9-2-92-124
The People’s Republic of China is, according to its Constitution, “a unitary multi-national state” based on the socialist system. The Constitution also allows the state to establish “special administrative regions” in light of “specific conditions.” This provision backs the principle of “One Country, Two Systems” that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a “Basic Law” prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese “Central Authorities” and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that “One Country, Two Systems” with not be “distorted,” that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of “One Country, Two Systems” in the two regions has been “developmental,” with the law serving the interests of the “Centre” under the leadership of the Communist Party of China.
Keywords: People’s Republic of China; Hong Kong; socialist state; unitary state; Special Administrative Region; “One Country, Two Systems”; central-local relations; mechanisms of central control. PUI-YIN LO 93
Recommended citation: Pui-yin Lo, China’s Socialist Unitary State and its Capitalist Special Administrative Regions: “One Country, Two Systems” and its Developmental Implementation, 9(2) Russian Law Journal 92–124 (2021).
Table of Contents
Introduction 1. The People’s Republic of China as a Socialist Unitary State 2. The “One Country, Two Systems” Policy and its Implementation 3. The Special Administrative Regions and the Basic Laws 3.1. The Powers of the Central Authorities “in Accordance with” the Basic Laws 3.2. The Liaison Office of the Central People’s Government and the Management of the United Front 3.3. The “Chief Executive-led” Government as the Accountable Proxy 3.4. National Economic and Social Development Planning and the Greater Bay Area 3.5. The Hong Kong National Security Law Conclusion
Introduction
China has advanced the principle of “One Country, Two Systems” (OCTS principle) for the peaceful reunification of territories with the motherland since the 1980s. In 1997 and 1999, the OCTS principle was put into practice by the establishment of the Special Administrative Regions (SARs) of Hong Kong and Macau following the return of those territories from British and Portuguese administration respectively. Unlike the socialist approach dealing with the question of “nationalities” hitherto, the OCTS principle is innovative as a political, institutional and constitutional initiative, whereby a socialist state led by the communist party vanguard, allows a territory to be administered by its local inhabitants with a “high degree of autonomy” and remaining in the meantime “capitalist” both in the economy and the way of life. And, to ensure peaceful transition of the resumption of exercise of sovereignty and assure the local inhabitants, the policies following the OCTS principle were set out in declaratory writing, together with a commitment that they would be stipulated in a “Basic Law” and remain unchanged for 50 years.1
1 See the Joint Declaration of the Government of United Kingdom of Great Britain and the Government of the People’s Republic of China on the Question of Hong Kong (19 December 1984), 1399 U.N.T.S. 33; 23 I.L.M. 1366 (1984); and the Joint Declaration of the Government of the Republic of Portugal and the Government of the People’s Republic of China on the Question of Macao (26 March 1987), 1498 U.N.T.S. 195; 5 Asian Ybk. of Intl. L. 567 (1995). Russian Law Journal Volume IX (2021) Issue 2 94
The commencement of the Basic Laws in respect of the Hong Kong Special Admi- nistrative Region (HKSAR) in 1997 and in respect of the Macau Special Administrative Region (MSAR) in 1999 respectively began two decades of constitutional and legal interactions,2 if not struggle, between “the Central Authorities” and the SARs principally through the medium of the sub-national Basic Laws, and at some critical junctures by the intervening reliance of the national Constitution.3 This article seeks to highlight the socialist thinking and mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure – • that the “One Country, Two Systems” policy would not be “distorted”; • that the “intentions” underlying the Basic Law would be observed; • that national sovereignty, national security and national development interests would be safeguarded; and • that the Special Administrative Regions would play a positive role in national economic development. The Centre-initiated mechanisms have thus far included – • the enlivening and timely application of the power of interpretation of the Basic Law by the Standing Committee of the National People’s Congress (NPCSC) (the standing body of the highest organ of state power, the National People’s Congress (NPC)); • the establishment of a liaison office of the Central People’s Government (CPG) in the SAR of cadres deployed there to monitor, liaise and co-ordinate political, social and cultural factions and units in the SAR through United Front and other works; • the support and promotion of a form of “Chief Executive-led” government in the SAR to the exclusion of the practice of other governmental approaches such as a parliamentary system or a separation of powers/check and balance system; • the inclusion of the SARs into the five-year programmatic national economic planning system, and the social and way of life integration of the SARs with their neighbouring cities (like the “Greater Bay Area” concept and outline development plan) and of the residents of the SARs with their Chinese Mainland compatriots (like the introduction of a resident card for those residents living in the Chinese Mainland to enable them to enjoy state benefits); and • the enactment, for the HKSAR, of a national law to safeguard national security there.
2 the Basic Law of the HKSAR and the Basic Law of the MSAR are structurally identical but have differences in drafting, including in relation to provisions protective of rights and freedoms of residents. For a comparison of the two Basic Laws, see Albert H.Y. Chen & Pui Yin Lo, The Constitutional Orders of “One Country, Two Systems”: A Comparative Study of the Visible and Invisible Bases of Constitutional Review and Proportionality Analysis in the Chinese Special Administrative Regions of Hong Kong and Macau in The Invisible Constitution in Comparative Perspective 230 (Rosalind Dixon & Adrienne Stone eds., 2018). 3 For comparisons of the legal systems of the HKSAR and the MSAR in the English language, see Ignazio Castellucci, Legal Hybridity in Hong Kong and Macau, 57(4) McGill L.J. 665 (2011); and Eric C. Ip, Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions (2019). PUI-YIN LO 95
Reactions in the two SARs to interventions of the Central Authorities have differed. Legal elites and pro-democracy politicians in the HKSAR have reacted strongly against the Centre’s interventions and sought to enlist the courts of the HKSAR to produce jurisprudence protective of the “two systems” element of the “One Country, Two Systems” principle and resisted the introduction, maintenance and propagation of socialist approaches that are seen as “corrosive” of Hong Kong’s common law-based and internationalist legal and judicial systems.4 The response of the ruling elite in the MSAR, by contrast, has been patriotically supportive.5 Hence this article will primary look into the moves and exchanges between the Central Authorities, the HKSAR’s Chief Executive and the Government he or she leads, and the HKSAR’s civil society in relation to central control to illustrate the extent that the socialist legacy in matters of legality have continued in China in the four decades since the adoption by the Communist Party of China of the policy of “reform and opening up.”
1. The People’s Republic of China as a Socialist Unitary State
The People’s Republic of China (PRC) was founded in 1949 as a “people’s democ- ratic state” that implements “people’s democratic dictatorship” under the leadership of the working class, opposing imperialism, feudalism and bureaucratic capitalism, in struggle for the independence, democracy, peace, unification, strength and prosperity of China.6 At the time of foundation, the PRC had not reunited all Chinese territories. The island of Hainan was liberated in May 1950. The “Seventeen Points Agreement,” which paved the way for the peaceful liberation of Tibet, was signed and sealed in May 1951. By the time the first Constitution of the People’sR epublic of China (PRC Constitution)
4 See, generally, Pui Yin Lo, An Internationalist, Consequentialist and Non-progressive Court: Constitutional Adjudication in Hong Kong (1997–2009), 2 City U. H.K. L. Rev. 215 (2010). 5 the MSAR has fulfilled in 2009 its “obligation” to enact locally legislation safeguarding national security; see Section 3.5 below. The Government of the MSAR has also maintained a conservative policy of not admitting into Macau politically active or controversial Hong Kong residents as well as journalists based in Hong Kong or of particular news organizations, on the ground that their presence there may jeopardise the public security of this SAR; see Johannes M.M. Chan, Paths of Justice 212–217 (2018); and Hong Kong Journalists Denied Entry to Macau, Committee to Protect Journalists, 28 August 2017 (Mar. 5, 2021), available at https://cpj.org/2017/08/hong-kong-journalists-denied-entry-to-macau/. Moves have been made to orient the systems of the MSAR from Portuguese influence, including the dismissal of two Portuguese legal advisers to the MSAR’s legislature in 2018 and the enactment of legislation also in 2018 to ensure that only judges who are Chinese nationals may hear and determine cases with a national security dimension; see Farah Master, In Macau, Portuguese Elites Feel Squeezed Out by Chinese Influence, Reuters, 5 October 2018 (Mar. 5, 2021), available at https://www.reuters.com/article/us-macau-china- law/in-macau-portuguese-elites-feel-squeezed-out-by-chinese-influence-idUSKCN1MF0OQ. 6 Common Programme of the Chinese People’s Political Consultative Conference, adopted by the First Plenary Session of the CPPCC on 29 September 1949, Art. 1. The Common Programme can be regarded as a provisional constitutional instrument of the PRC. An English translation is available at http://www. lawinfochina.com/display.aspx?id=13212&lib=law. Russian Law Journal Volume IX (2021) Issue 2 96 was adopted on 20 September 1954 by the First Session of the First NPC,7 the territory of Inner Mongolia was already a regional ethnic autonomous region,8 with Xinjiang and Tibet gradually following suit in the next decade.9 Yet, at the time, the Government of the Republic of China of the Kuomintang that the Chinese People’s Liberation Army of the CPC defeated in the Civil War of 1945–1949 had relocated to the island of Taiwan and its associated territories of Penghu, Kinmen and Matsu. And Hong Kong and Macau remained under the colonial rule of Britain and Portugal respectively. Nevertheless, in the course of the founding of the People’s Republic and the drafting of its constitutional documents, the question of whether the new State should adopt a form of a federalist structure similar to that the Soviet Union of constituent republics was debated. Having referred to the writings of Marx, Engels, Lenin and Stalin and considering the formation of the Soviet Union as a case of the fragmentation of Russian state after multiple revolutions, the decision was made to adopt the system of a unitary state under which regional autonomy would be implemented in areas with a particular national minority population.10 Reunification of theM otherland was firmly in the agenda of the CPC in the drafting of the current PRC Constitution in the early 1980s. Ye Jianying, the Chairman of the NPCSC, made a public statement in 1981 calling for a repeat in the co-operations between the CPC and the Kuomingtang, commencement of exchanges between the Chinese Mainland and the Taiwan region, and reunification on terms that theT aiwan region would have a degree of autonomy as a “Special Administrative Region,” retain
7 Constitution of the People’s Republic of China (1954), which, in its Preamble, stated that it was based on the Common Programme, and in Article 3, stated that the PRC “is a single multi-national state,” with “regional autonomy” being applicable to areas of “compact communities” of “national minorities.” An English translation is available at http://en.pkulaw.cn/display.aspx?cgid=52993&lib=law. 8 the CPC’s approach to regional ethnic autonomy approximated with that practised by Stalin in the Soviet Union than the resolution to the problem of “nationalities” advocated by Lenin in his “Last Testament: Letters to the Congress – The Question of Nationalities or Autonomisation”; see Beryl Williams, Lenin and the Problem of Nationalities, 15(4-6) Hist. Eur. Ideas 611 (1992); and Joseph Lian, How Lenin Considered the Problem of “Nationalities” Back Then, Hong Kong Econ. J., 16 July 2009 (in Chinese) (Mar. 5, 2021), available at http://hktext.blogspot.com/2009/07/blog-post_8235.html. Shiyuan Hao considered that the Soviet Union made “premature judgments about the development course for socialist construction” and handled the problem of nationalities “in a radical and simplistic manner,” and then promoted CPC’s leadership work under the praxis of “human development” by way of “socialism with Chinese characteristics” through implementing regional national autonomy in areas with concentrations of minority nationalities, quoting Mao Zedong’s words for continuing “to study Stalin diligently wherever he is right,” while making sure that the study “is linked with the Chinese reality”; see Shiyuan Hao, How the Communist Party of China Manages the Issue of Nationality: An Evolving Topic 1 (2016). 9 See in the case of Xinjiang, State Council Information Office, Cultural Protection and Development in Xinjiang (November 2018) (Mar. 5, 2021), available at http://english.www.gov.cn/archive/white_ paper/2018/11/15/content_281476391524846.htm. See, in the case of Tibet, State Council Information Office, Democratic Reform in Tibet – Sixty Years On (March 2019) (Mar. 5, 2021), available at http:// english.www.gov.cn/archive/white_paper/2019/03/28/content_281476583712704.htm. 10 Jie Cheng, The Way of Governance and the Power of Governance: A Systemic Analysis of China’s Cons- titution 164–166 (2015) (in Chinese). PUI-YIN LO 97 its own military, maintain unchanged its existing social, economic systems, way of life, and economic and cultural relations with foreign countries, and that there be no interference with private property, ownership of enterprises, legitimate right of inheritance and foreign investment there.11 On 24 September 1982, Deng Xiaoping told Margaret Thatcher, the visiting British Prime Minister, that China would recover the whole of Hong Kong from Britain in 1997 and apply policies on Hong Kong that would keep in force the then “political and economic systems and even most of its laws.”12 The OCTS principle was then being shaped by the leaders of the CPC, who intended to apply it to reunite Taiwan and Hong Kong.13 The current Constitution of the People’s Republic of China, adopted by the NPC on 4 December 1982,14 thus charted in the Preamble the transition of the Chinese people of all nationalities in transforming China into a socialist society under the leadership of the CPC and declared the PRC as “a unitary multi-national state created jointly by the people of all its nationalities.”15 Acknowledging that the “motherland” has yet to be reunified,16 the Constitution provides that while fundamentally, the socialist system is the basic system of the PRC and shall not be disrupted,17 the state “may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions.”18
11 the full text of Chairman Ye see in Ye Jianying on Taiwan’s Return to Motherland and Peaceful Reuni- fication (Mar. 5, 2021), available at http://www.china.org.cn/english/7945.htm. See also State Council Information Office and State Council Taiwan Affairs Office, The Taiwan Question and Reunification of China (August 1993) (Mar. 5, 2021), available at http://www.china.org.cn/e-white/taiwan/index. htm; and State Council Information Office,T he One-China Principle and the Taiwan Issue (February 2000) (Mar. 5, 2021), available at http://www.lawinfochina.com/display.aspx?lib=dbref&id=21&Enc odingName=big5. 12 See Deng Xiaoping on the Question of Hong Kong 3 (1993). 13 yash Ghai summarized this promise of autonomy in Yash Ghai, Litigating the Basic Law: Jurisdiction, Interpretation and Procedure in Hong Kong’s Constitutional Debate: Conflict over Interpretation 3, 29–31 (Johannes M.M. Chan et al. eds., 2000). The motivations are more than political, since Hong Kong had been China’s largest source of foreign direct investment since the beginning of the policy of “reform and opening up”; see Kui Yin Cheung & Chengze Simon Fan, Hong Kong Investment in China and Income Distribution of Hong Kong, 16(4) J. Econ. Integr. 526 (2001); and Michael J. Enright, Developing China: The Remarkable Impact of Foreign Direct Investment (2017). 14 the PRC Constitution was amended by the NPC in 1988, 1993, 1999, 2004 and 2018. 15 PRC Constitution, Preamble. 16 the Preamble of the PRC Constitution refers to “the inviolable duty of all Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.” 17 PRC Constitution, Art. 1. The Thirty-sixth Amendment to the PRC Constitution, adopted by the NPC on 11 March 2018, added to Article 1 the provision that the leadership of the CPC is the most basic characteristic of socialism with Chinese characteristics. 18 PRC Constitution, Art. 31. Russian Law Journal Volume IX (2021) Issue 2 98
Albert H.Y. Chen discussed the PRC Constitution in terms of its nature, and the form of the state and the political system it establishes. As to nature, the PRC Constitution is the “mother-law” from which other laws derived and has the status as the “fundamental law of the state” and has “supreme legal authority.”19 The form of state, on which the form of the political system depends, is considered to be the “people’s democratic dictatorship” under the leadership of the CPC.20 The form of the political system for the exercise of state power is the people’s congress system, with the NPC being the organ through which the people exercise state power at the national level; it is the “supreme organ of state power,” the apex of a pyramidal structure of people’s congresses. Each of the people’s congresses in the hierarchy exercises the power of the people in socialist unification of deliberation and execution; it is the people’s congress that deliberates and makes the decision and one of the organs directly under it that carries out the decision, reports on the carrying out of the decision, and accepts supervision on the same.21 The provisions of the PRC Constitution on the relationship of the NPC to the bodies of government at the national level, and the provisions of the Constitution on the relationship of the local people’s congresses to the bodies of government of the local level implicate the practice of the principle of “democratic centralism,” a Leninist principle of state and party organization that has all along been broadly applied to the CPC’s governance at state and local levels.22 Mao Zedong had expressed figuratively his understanding that “democratic centralism” involves four “subordinations”: the individual be subordinated to the organization; the minority be subordinated to the majority; the lower-level organ be subordinated to the high level organ; and the local authority be subordinated to the higher level organ. As Jie Cheng has underscored, centralization of power is the object of “democratic centralism,” the starting point for resolving central-local relationships and higher- lower tier relationships. This principle, as Zhou Enlai explained, required all works to be carried out under unified policy and unified plan, while giving some authority to the local agent to take account of local circumstances and further the motivations of local cadres.23 Even the subsequent discussion by Deng Xiaoping in the “reform and opening up” era had not played down the element of centralization:
19 PRC Constitution, Preamble and Art. 5. 20 PRC Constitution, Art. 1. CPC General Secretary Xi Jinping has recently reaffirmed the leadership of the CPC in the governance of the PRC according to law, and in the construction of China into a “socialist country ruled by law” pursuant to Article 5 of the PRC Constitution; see Jinping Xi, Strengthening the Leadership of the Party on Comprehensive Law-based Governance of the Country, 4 Qiu Shi (2019) (in Chinese) (Mar. 5, 2021), available at http://www.qstheory.cn/dukan/qs/2019-02/15/c_1124114454.htm. 21 albert H.Y. Chen, An Introduction to the Chinese Legal System 57–60 (5th ed., LexisNexis, 2019). See also Pitman Potter, China’s Legal System 7–48 (2013); and Qianfan Zhang, The Constitution of China: A Contextual Analysis 75–148 (2012). 22 William Partlett & Eric C. Ip, Is Socialist Law Really Dead?, 48(2) N.Y.U. J. Int’l L. & Politics 463, 471 (2016). 23 Cheng 2015, at 162–164. See also Sarah Biddulph, Democratic Centralism and Administration in China in Socialist Law in Socialist East Asia 195 (Hualing Fu et al. eds., 2018). PUI-YIN LO 99
[Under] the system, personal interests must be subordinated to collective ones, the interests of the part to those of the whole, and immediate to long- term interests.24
The basics of the governance of China under the leadership of the CPC have been sketched: The PRC is a unitary state of the people exercising power through organs of power under the leadership of the CPC in a centralized manner. This article shall seek to illustrate in the succeeding sections that the features of the PRC state summarized here are very much present in the interactions between the Central Authorities and the SARs, notwithstanding that there is a law enacted by the NPC that has established the systems of the SARs for the exercise of autonomy by the local inhabitants of each of them.
2. The “One Country, Two Systems” Policy and its Implementation
Constitutional provisions give constitutional and legal backing for the state policy of “One Country, Two Systems,” where the Chinese state, when it achieves reunification withT aiwan, Hong Kong and Macau, would allow these territories to continue under the “capitalist” system with the current social and economic systems remaining unchanged, their legal systems remaining “basically” unchanged, and their ways of life and various statuses remaining unchanged, and to continue to maintain or establish economic relations with other countries and regions. Specific terms of this policy, as they were to apply to Hong Kong and Macau upon the resumption of exercise of sovereignty by the PRC over each of them for a stated period of 50 years, were set out in the Sino-British Joint Declaration on the Question of Hong Kong 198425 and the Sino-Portuguese Joint Declaration of Macau 1987 respectively.26 These specific terms were stated to be enacted into law in the two Joint Declarations. Cross-referencing the specific terms of the PRC’s policies towards Hong Kong and Macau enacted into law with the PRC’s constitutional provisions and legislation (which was enacted in 1984), for regulation of regional autonomy of minority nationalities, as Yash Ghai, Jason Buhi and Joseph Lian had done, illustrate the distinction of the SARs set up under the former from the national autonomous regions regulated under the latter. Particularly, the national autonomous regions and their institutions are governed by the PRC’s political system of the people’s congresses, and the systems
24 Xiaoping Deng, Emancipate the Mind, Seek Truth from Facts and Unite as One in Looking to the Future in Selected Works of Deng Xiaoping (1975–1982) 151 (1978). 25 Sino-British Joint Declaration, supra note 1, Arts. 1, 3; Annex I. 26 Sino-Portuguese Joint Declaration, supra note 1, Arts. 1, 2; Annex I. Russian Law Journal Volume IX (2021) Issue 2 100 of supervision for the people’s courts, people’s procuratorates and the supervision commissions, pursuant to the principle of democratic centralism.27 The Basic Law of the HKSAR was drafted between 1985 and 1990. One question, which emerged in the course of the drafting process, required eventually a specific decision of the NPC to resolve. This was over the compatibility of the Basic Law with the PRC Constitution, bearing in mind that the systems to be established pursuant to the Basic Law would be different from, if not diametrically opposed to, the socialist basic system of the country, including a political system that promised, as the ultimate goal, universal suffrage of the ChiefE xecutive (the head of the SAR) and all members of the Legislative Council, a legal system based on the common law (where national laws made by the NPC or its Standing Committee are not to be applicable to the HKSAR unless the NPCSC decides that specific conditions are met), provisions that regulate the activities of Mainland Chinese units of government in Hong Kong and obliging Mainland Chinese officers to obey the laws of the SAR while in Hong Kong, and provisions that appear to insulate the HKSAR from the practice of the socialist system and policies.28 The NPC held that the Basic Law of the HKSAR was constitutional “as it is enacted in accordance with the Constitution of the People’s Republic of China and the specific conditions of Hong Kong.T he systems, policies and laws to be instituted after the establishment of the [HKSAR] shall be based on the Basic Law of the [HKSAR].”29 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China was adopted by the NPC on 4 April 1990, to be put into effect on 1 July 1997, when the resumption of exercise of Chinese sovereignty over Hong Kong and the establishment of the HKSAR would take place.30 The Basic Law of the Macao
27 See Yash Ghai, Hong Kong’s New Constitutional Order 115–117 (2nd ed. 1999); Jason Buhi, Constitutional Asymmetry in the People’s Republic of China: Struggles of Autonomy Under a One-Party State in Constitutional Asymmetry in Multinational Federalism: Managing Multinationalism in Multi-Tiered Systems 105 (Patricia Popelier & Maja Shadzic eds., 2019); Joseph Lian, What Is the Autonomy in the Mainland’s Law on Autonomy, Hong Kong Econ. J. (2009) (Mar. 5, 2021), available at https://hktext. blogspot.com/2009/07/blog-post_9409.html. See also Cheng 2015, at 164–166. 28 yash Ghai characterized the provisions in the draft Basic Law as being “inconsistent” with the PRC Constitution and noted that there was a proposal in the course of the drafting process calling for the PRC Constitution to be amended to address the issue; see Ghai 1999, at 61–62, 178. Hualing Fu referred to this matter “as a particularly ambiguous point in the Basic Law” which had in fact been raised during the consultation process of the drafts of the Basic Law; see Hualing Fu, Supremacy of a Different Kind: The Constitution, the NPC, and the Hong Kong SAR in Hong Kong’s Constitutional Debate, supra note 13, at 97–111. 29 decision of the National People’s Congress on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990. A similar decision was made by the NPC in respect of the Basic Law of the MSAR on 31 March 1993. 30 the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990; promulgated by the President of the People’s Republic of China on 4 April 1990, 29 I.L.M. 1511 (1990). PUI-YIN LO 101
Special Administrative Region of the People’s Republic of China were enacted by the NPC on 31 March 1993, to be put into effect on 20 December 1999, when the resumption of exercise of Chinese sovereignty over Macau and the establishment of the MSAR would take place.31 The establishment of the SARs under Article 31 of the PRC Constitution and the enactment of the Basic Laws pursuant to Article 31 produce a paradox over the implementation of the PRC Constitution in the SARs themselves. There had been disquiet in the Hong Kong legal sector since 1 July 1997 on the Department of Justice’s act of including the PRC Constitution as a “constitutional instrument” in the department’s compilation of the Laws of the HKSAR. A more relevant perspective has been the HKSAR courts’ treatment of the PRC Constitution, which will be discussed below. The approach of the Central Authorities to this paradox of implementation at first was to refer to the relevant Basic Law only in its official pronouncements on the SARs. Since June 2014, after the publication by the State Council Information Office of a White Paper on the Practice of OCTS in the HKSAR,32 the Central Authorities have referred to the constitutional basis of the SARs to be the PRC Constitution and the relevant Basic Law. An important milestone in the development of this approach was the speech by President Xi Jinping in Hong Kong on 1 July 2017 at the meeting marking the 20th Anniversary of Hong Kong’s Return to the Motherland and the Inaugural Ceremony of the Fifth Term Government of the HKSAR. The President explained in the speech the constitutional basis of the HKSAR is the Constitution and the Basic Law and underlined the exercise of jurisdiction over Hong Kong by the Central Government in accordance with the Constitution and the Basic Law.33 The HKSAR Government had since obliged by issuing booklets of both the Constitution and the Basic Law.34 These recent official assertions and exertions to underline the Constitution as the “mother law” basis do not resolve the paradox satisfactorily. Questions have continued to be asked in Hong Kong over the extent in which the Constitution, a socialist instrument, is “applicable,” “effective” or “implemented” in the SAR, notwithstanding that it is the Basic Law that prescribes the systems and
31 the Basic Law of the Macao Special Administrative Region of the People’s Republic of China, adopted at the First Session of the Eighth National People’s Congress on 31 March 1993; promulgated by the President of the People’s Republic of China on 31 March 1993. An English translation is available at http://www.wipo.int/edocs/lexdocs/laws/en/mo/mo019en.pdf. 32 State Council Information Office,T he Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region, 10 June 2014 (Mar. 5, 2021), available at http://www.scio.gov. cn/zfbps/ndhf/2014/Document/1373163/1373163.htm. 33 Jinping Xi, Speech at the Meeting Celebrating the 20th Anniversary of Hong Kong’s Return to the Motherland and the Inaugural Ceremony of the Fifth Term Government of the Hong Kong Special Administrative Region, China Daily, 1 July 2017 (Mar. 5, 2021), available at http://www.chinadaily.com.cn/china/ hk20threturn/2017-07/01/content_29959860.htm. 34 the booklet is accessible from the HKSAR Government’s Basic Law website (Mar. 5, 2021), available at http://www.basiclaw.gov.hk/tc/basiclawtext/images/basiclaw_full_text_tc.pdf. Russian Law Journal Volume IX (2021) Issue 2 102 policies of the SAR, including the provision that socialist system and policies shall not be practised in the SAR.35 It was through the Basic Law and its interpretation and implementation locally in the SAR that the HKSAR, particularly its courts, constructs its political, constitutional and legal identity distinct from that of the rest of the PRC,36 and makes the claim that the Hong Kong jurisdiction enjoys judicial independence and autonomy and is the suitable and sustainable centre for resolving legal disputes for businesses in the Asia-Pacific region and the Belt and Road Initiative, including cases involving a Mainland Chinese entity.37
3. The Special Administrative Regions and the Basic Laws
The SAR’s administration of the relevant Basic Law was in beginning of the establishment of the SARs left largely a matter of “Two Systems” and to the SAR’s established authorities. In the HKSAR, the Basic Law of the HKSAR has been regarded as a constitutional instrument, whose understanding and application had been informed by principles and values of constitutionalism.38 As Johannes M.M. Chan has demonstrated, certain principles or objectives, including those of preservation of the integrity of the common law system and its protective concern of freedoms and liberties enjoyed by the individual, maintenance and continuity of the previous systems and arrangements, and the separation of powers, have been underlined by the HKSAR courts. Continuing from the previous common law based system and the practice of law in Hong Kong, the Hong Kong Court of Final Appeal (HKCFA) was able to lay down the judicial authority in the interpretation of the Basic Law in the HKSAR and the courts’ general approach of interpretation of the Basic Law, including the adoption of a purposive approach towards interpretation in keeping with the nature of the Basic Law as a constitutional instrument, requiring the HKSAR Government to justify a restriction of the rights and freedoms enjoyed by residents in the HKSAR, and referring extensively to international and comparative materials,
35 For a reiteration of the question, see Jasper Yok-sing Tsang, The Constitution’s Implementation, 14 March 2019 (in Chinese) (Mar. 5, 2021), available at http://www.master-insight.com/憲法實施/. Tsang, a former President of the Legislative Council of the HKSAR, called for an authoritative, rigorous and comprehensive account on the question. 36 See, generally, Pui Yin Lo, The Judicial Construction of Hong Kong’s Basic Law (2014); and Johannes M.M. Chan, Behind the Text of the Basic Law: Some Constitutional Fundamentals in The Invisible Constitution in Comparative Perspective, supra note 2, at 193. 37 See, e.g., Teresa Cheng, Speech of the Secretary for Justice in the “The Belt and Road Initiative and Inter- national Dispute Settlement” Panel Session at the Form on the Belt and Road Legal Cooperation, 2 July 2018 (Mar. 5, 2021), available at http://www.doj.gov.hk/en/community_engagement/speeches/pdf/ sj20180702e1.pdf. 38 t he final court of appeal of theM SAR (Tribunal de Ultima Instancia) has embarked on a similar trajec- tory, at least where the matters in question were the judicial review of legislation and the application of proportionality as a standard of review; see Chen & Lo 2018. PUI-YIN LO 103 particularly in adjudications on protected fundamental rights and determining the appropriate judicial remedies.39 The running of the SARs by their respective institutions in their own ways had been left unhindered largely by the Central Authorities unless an issue of substantive or vital importance arose. Whether an issue is of substantive or vital importance to the Central Authorities is a function of socialist political ideology. As the resolution of such matters have turned out, the Central Authorities have chosen the tools of socialist legality to address controversies and they have proved effective against the recalcitrant institutions of the HKSAR, which happened to be the courts and the legal profession, both of which were and are bound to an ethos of the “Rule of Law,” even though the means that have been used to procure their submission have had more to do with ruling by the Centre “in accordance with law” than any principles or values of constitutionalism that they wished to maintain and propagate in Hong Kong.
3.1. The Powers of the Central Authorities “in Accordance with” the Basic Laws The first constitutional controversy in Hong Kong came from the HKCFA’s judg- ment in the right of abode litigation in 1999. In this Ng Ka Ling judgment of 29 January 1999, the HKCFA declined the request made on behalf of the HKSAR Government to refer provision(s) of the Basic Law of the HKSAR considered necessary for the adjudi- cation to the NPCSC for interpretation and proceeded to interpret all the provisions concerned and then rejected the Government’s case.40 The HKSAR Government’s request was made pursuant to the provision of the Basic Law of the HKSAR on its interpretation, which first provides for the authority of the NPCSC to interpret the Basic Law and then provides that, in adjudicating cases, the HKSAR courts are authorised by the NPCSC to interpret the provisions of the Basic Law on their own, except that the HKCFA is required to make a reference, before final adjudication, to the NPCSC regarding the interpretation of a Basic Law provision which is concerned with an affair that is the responsibility of the Central People’s Government or concerned with the relationship between the Central Authorities and the HKSAR, and whose interpretation is necessary for such final adjudication.41
39 Chan, Behind the Text of the Basic Law. The HKSAR courts are enabled by the self-contained judicial system of the HKSAR, which includes its own power of final adjudication, the delegated authority to interpret on its own provisions of the Basic Law that are within the autonomy of the HKSAR, the authority to refer to precedents of other common law jurisdictions, and the authority on the part of the Hong Kong Court of Final Appeal to invite judges from other common law jurisdictions to sit on the Court as non-permanent judges: Basic Law of the HKSAR, Arts. 2, 19, 82, 84 & 85. For detailed discussions of the courts of the Hong Kong SAR, see Pui Yin Lo, Hong Kong: Common Law Courts in China in Asian Courts in Context 183 (Jiunn-rong Yeh & Wen-Chen Chang eds., 2014); Albert H.Y. Chen & Pui Yin Lo, Hong Kong’s Judiciary Under ‘One Country, Two Systems’ in Asia-Pacific Judiciaries: Independence, Impartiality and Integrity 131 (Hoong P. Lee & Marilyn Pittard eds., 2018). 40 See Chan, Behind the Text of the Basic Law, at 200–202. 41 Basic Law of the HKSAR, Art. 158. Russian Law Journal Volume IX (2021) Issue 2 104
The HKCFA probably transgressed the rule for making a reference to the NPCSC for final interpretation before final adjudication, since one of the necessary provisions involved in the adjudication was arguably a provision concerned with the Central Authorities and the HKSAR. This could have been left to rest on the basis of respecting autonomy, had not the HKCFA asserted in the same judgment the “constitutional jurisdiction” to review whether an act of the NPC or the NPCSC is inconsistent with the Basic Law as part and parcel of the HKSAR courts’ jurisdiction to enforce and interpret the Basic Law.42 Officers of the CentralA uthorities, including those Soviet- educated legal scholars responsible for the drafting of the Basic Law,43 would have none of this sort of usurping checking of the supreme authority of the State, a clear violation of the precept of democratic centralism. The assertion was duly purged with the co-option of the Secretary for Justice of the HKSAR Government, who applied to the HKCFA for a “clarification” of its judgment, and of the HKCFA, which duly issued on 26 February 1999 a “unanimous judgment” acknowledging that its jurisdiction to enforce and interpret the Basic Law “is derived from and is subject to the provisions of the Basic Law” and expressed its acceptance that “[it] cannot question [the authority of the NPCSC to make an interpretation under Art. 158 which would have to be followed by the courts of the Region] … the Court accepts that it cannot question, the authority of the [NPC] or the [NPCSC] to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.”44 Although the HKCFA’s clarification clarified nothing,45 it was soon realized that the NPCSC would issue an interpretation at the request of the State Council in light of a report from the Chief Executive of HKSAR expressing “difficulties” in implementing the HKCFA’s judgment of 29 January 1999.46 The NPCSC Interpretation of 26 June 1999, which cited Article 67(4) of the PRC Constitution and Article 158(1) of the Basic Law of the HKSAR, considered not only that the HKCFA had not sought an interpretation from the NPCSC before final adjudication when it should have but also that the HKCFA’s interpretation “is not consistent with the legislative intent.” The NPCSC then issued its interpretation of the relevant provisions of the Basic Law to nullify and supersede the HKCFA’s interpretation of those provisions.47 Subsequently, the HKCFA announced in a judgment on 3 December 1999 that it accepted as binding
42 Ng Ka Ling & Ors v. Director of Immigration (1999) 2 H.K.C.F.A.R. 4, 26 (C.F.A.). 43 the former drafters of the Basic Law who were upset by the HKCFA’s assertions included Wu Jianfan and Xiao Weiyun, both of whom received legal education in the Soviet Union in the early 1950s. They and two other drafters, Shao Tianren and Xu Chongde, made known of their displeasure to the Chinese official press; see Hong Kong’s Constitutional Debate, supra note 13, at 53–60. 44 Ng Ka Ling & Ors v. Director of Immigration (1999) 2 H.K.C.F.A.R. 141 (C.F.A.). 45 See also Chan, Paths of Justice, at 30–34. 46 See Hong Kong’s Constitutional Debate, supra note 13, at 474–477. 47 See Id. at 478–480. PUI-YIN LO 105 on the HKSAR courts the NPCSC Interpretation of 26 June 1999, suggesting that it stated what the Basic Law provisions concerned meant on the date of coming into operation of the Basic Law.48 The HKCFA judgments above have solidified into canon in the next 20 years, so much that nowadays, the HKSAR courts believe that they are bound to enforce any interpretation adopted by the NPCSC49 and deny they could have jurisdiction to challenge the validity of a decision of the NPCSC.50 The HKSAR courts have also resolved the ambiguity over the applicability of the PRC Constitution to adjudications in the HKSAR by rejecting arguments that provisions of the PRC Constitution are “necessary irrelevant or should be ignored by the Hong Kong courts when adjudicating cases.”51 In the same period of time, the NPCSC had produced four more interpretations and seven more decisions, extending the reach of its powers from purporting to elucidate “legislative intention” of a provision of the Basic Law of the HKSAR,52 to establishing the procedure and parameters for development of the political system of the HKSAR,53 the authorization of the HKSAR to exercise jurisdiction outside SAR territory on leased land in Mainland China,54 the assertion of Central positions against the social movement for “Hong Kong independence” in political life in Hong Kong,55 and the purported approval, in exercise of the PRC Constitution’s power of supervising its implementation and of the Basic Law’s implied power of supervising its implementation, of a co-operation arrangement between Mainland and the HKSAR on the establishment of a Mainland port at the West Kowloon Station of the high speed
48 Lau Kong Yung & Ors v. Director of Immigration (1999) 2 H.K.C.F.A.R. 300 (C.F.A.). 49 See Chief Executive of the HKSAR v. President of the Legislative Council [2017] 1 H.K.L.R.D. 460 (C.A.); Secretary for Justice v. Leung Kwok Hung [2019] H.K.C.A. 173 (15 February 2019) (C.A.). 50 See Yau Wai Ching v. Chief Executive of the HKSAR (2017) 20 H.K.C.F.A.R. 390 (C.F.A.); Secretary for Justice v. Leung Kwok Hung, supra note 49; Leung Chung Hang Sixtus & Ors v. President of Legislative Council [2019] 1 H.K.L.R.D. 292 (C.F.I.). 51 See Leung Chung Hang Sixtus & Ors v. President of Legislative Council, supra note 50. 52 See the NPCSC Interpretation of 27 April 2005 (on Article 53 of the Basic Law) and the NPCSC Interpretation of 26 August 2011 (on Articles 13 and 19 of the Basic Law). 53 See the NPCSC Interpretation of 6 April 2004 and decisions purported to be made under this interpretation and the decision(s) made under this interpretation, including the NPCSC Decision of 31 August 2014, which set out restrictive terms under which the election of the candidate for appointment of the office of Chief Executive by universal suffrage may be held. 54 See the NPCSC Decision of 31 October 2006 on Empowering the HKSAR to Exercise Jurisdiction over the Shenzhen Bay Port Hong Kong Port Area. 55 See the NPCSC Interpretation of 7 November 2016 of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, which not only was adopted in the course of legal proceedings in Hong Kong to apply relevant legislation to disqualify the relevant elected members of the Legislative Council on the ground that their oath-taking antics meant that they neglected to take the oath of office when called upon to do so, but also was produced to include a stipulation that would stymie any other persons who are adjudged to be unable to uphold the Basic Law and to swear allegiance to the HKSAR of the PRC from standing in elections. Russian Law Journal Volume IX (2021) Issue 2 106 rail link to Mainland China in the middle of Hong Kong exercising exclusive Mainland laws and jurisdiction therein.56 That the Central Authorities have subdued the common law courts of the HKSAR by invoking the Marxist-Leninist-Stalinist features of the PRC State of interpretation of laws by the NPCSC57 and of the Soviet-statist institution of centralized supervision58 testifies not only to the potency of democratic centralism as a unified, absolute, undefined and unrestrained “reservoir” of power but also to the unwillingness and inability (if not ignorance) on the part of the HKSAR courts to counter-act the NPCSC’s use of “legal tools” to control and rein in the systems of the HKSAR, and to mitigate their effects on them.59 The countervailing approach should have been to maintain the separate systems provided for the HKSAR pursuant to the Basic Law, at least in furthering the objects that socialist system and policies shall not be practised in the HKSAR, there be a high degree of autonomy in the HKSAR, and the rights and freedoms of all persons in the HKSAR be safeguarded.60 The power of interpretation of the NPCSC to interpret provisions of the Basic Law of the HKSAR at any time and with or without any request from the HKSAR courts has qualified the Rule of Law of the HKSAR.61 Yet, what has not been well
56 See the NPCSC Decision of 27 December 2017 on Approving the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement. 57 Hong Kong scholars had sought to discuss the supremacy of the NPCSC’s power of interpretation through the prism of constitutionalism in the wake of the controversy of the NPCSC Interpretation of 26 June 1999; see, generally, Hong Kong’s Constitutional Debate, supra note 13. Hong Kong scholars began to underline the socialist and Soviet-statist roots of the power of NPCSC interpretation in 2007; see Yash Ghai, The Political Economy of Interpretation in Interpreting Hong Kong’s Basic Law: The Struggle for Coherence 115 (Hualing Fu et al. eds., 2007); and Sophia Woodman, Legislative Interpretation by China’s National People’s Congress Standing Committee: A Power with Roots in the Stalinist Conception of Law in Id. at 229. 58 Partlett & Ip 2016, at 482, 496–497, 509. 59 Senior judges and lawyers in Hong Kong have continued to address the PRC constitutional system as “Mainland civil law system”; see Secretary for Justice v. Leung Kwok Hung [2019] H.K.C.A. 173 (15 February 2019) (C.A.); Chief Executive of the HKSAR v. President of the Legislative Council [2017] 1 H.K.L.R.D. 460 (C.A.). They said so notwithstanding a legion of scholastic discussion; see Cora Chan, The Legal Limits on Beijing’s Powers to Interpret Hong Kong’s Basic Law, HKU Legal Scholarship Blog, 3 November 2016 (Mar. 5, 2021), available at http://researchblog.law.hku.hk/2016/11/cora-chan-o%20n-legal-limits-of-beijings.html; Hualing Fu, Guide to Legislative Interpretation in China, HKU Legal Scholarship Blog, 19 July 2017 (Mar. 5, 2021), available at http://researchblog.law.hku.hk/2017/07/guide-to-legislative-interpretation-in.html; Jonathan Lam, Re-thinking the NPCSC’s Power to Interpret the Basic Law, 47 Hong Kong L.J. 825 (2017); Eric C. Ip, Interpreting Interpretations: A Methodology for the Judicial Enforcement of Legislative Interpretations of the Hong Kong Basic Law, 2017 Pub. L. 552 (2017); Feng Lin, The Duty of Hong Kong Courts to Follow the NPCSC’s Interpretation of the Basic Law: Are There Any Limits?, 48 Hong Kong L.J. 167 (2018); and Pui Yin Lo, Enforcing an Unfortunate, Unnecessary and ‘Unquestionably Binding’ NPCSC Interpretation: The Hong Kong Judiciary’s Deconstruction of its Construction of the Basic Law, 48 Hong Kong L.J. 399 (2018). 60 the summation of Basic Law of the HKSAR, Arts. 4, 5, 11. 61 See Anthony Mason, The Rule of Law in the Shadow of the Giant: The Hong Kong Experience, 33(4) Syd. L. Rev. 623 (2011). PUI-YIN LO 107 appreciated in Hong Kong by its legal elite is the fact that the Basic Law itself is replete with provisions designating, positioning and subordinating the HKSAR in the system of statist administration and supervision of the PRC. Article 12 of the Basic Law designates the HKSAR, in terms of administrative division, as “a local administrative region” of the PRC, coming directly under the CPG. Article 15 provides for the CPG’s power of appointment of the Chief Executive and the principal officials of the HKSAR Government, which implicates the concomitant power of dismissal. Article 17 provides for the NPCSC’s power to scrutinize legislations enacted by the HKSAR in terms of conformity with provisions of the Basic Law concerning affairs within the responsibilities of the Central Authorities or regarding the relationship between the Central Authorities and the HKSAR and to return any such legislation considered to be non-conforming in these respects, thereby invalidating it immediately. Although Article 18 provides for the general non-application of national laws for the purpose of ensuring the self-containing nature of the HKSAR’s legal system, it enables the NPCSC to add national laws “relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law,” and to decide on the existence of a state of emergency in the HKSAR so as to enable relevant national laws to be applied in the HKSAR. Article 43 provides that the Chief Executive of the HKSAR, the head of the HKSAR and the head of its Government, shall be accountable to the CPG and the HKSAR in accordance with the Basic Law. Budgets and final accounts of the HKSAR must be reported to the CPG for the record. The CPG is empowered under Article 48(8) to issue directives to the Chief Executive in respect of relevant matters provided for in the Basic Law and it is an incumbent function of the Chief Executive to implement such a directive. Last but not least, pursuant to Article 90, senior judicial appointments and removals in the HKSAR must be reported to the NPCSC for the record. Writing in 2002, Zhenmin Wang summarized most of the above powers in terms of the powers for the “organization” of the SARs and further discussed the resolution of the issue of “residual power” as between the Central Authorities and the SARs in terms of Article 2 of the Basic Laws stipulating that the high degree of autonomy enjoyed by the SARs being powers “delegated” by the Central Authorities, Article 12 signifying the SAR as being directly administered by the CPG, and of Article 20 empowering the SARs to “accept” additional powers from the Central Authorities, thus indicating that the Central Authorities retain the “residual powers.”62 If a study of the list of Central Authorities’ power above has not enlightened the Hong Kong legal community of the PRC’s coding of centralization of powers in the Basic Law, the 2014 State Council’s White Paper on the Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region should have.63
62 Zhenmin Wang, Relationship Between the Chinese Central Authorities and Regional Governments of Hong Kong and Macao: A Legal Perspective 143–175 (2019). 63 i.e. State Council Information Office, supra note 32. Russian Law Journal Volume IX (2021) Issue 2 108
The White Paper introduced the narrative of the Central Government exercising “overall jurisdiction” (quanmian guanzhi quan 全面管治權) over an SAR pursuant to the system of the SAR prescribed in the PRC Constitution and the Basic Law, with the Central Government having powers it would directly exercise, such as the powers of establishing the SAR and forming its organs of power, the functions of supporting and guiding the administration of the Chief Executive and the Government of the SAR in accordance with law, the responsibility for foreign affairs relating to the SAR, the responsibility for the defence of the SAR, the NPCSC’s powers regarding the SAR, and the Central Military Commission’s leadership of the garrison in the SAR; and the SAR being delegated with powers by the Central Government to enable it to exercise a high degree of autonomy in accordance with the law, subject to the Central Government’s power of oversight over the exercise of a high degree of autonomy in the SAR. Also, the White Paper made clear that the OCTS is predicated upon the PRC’s form and nature of its socialist state as well as its fundamental interests. It explained “One Country” in the following terms:
The “one country” means that within the PRC, the HKSAR is an inseparable part and a local administrative region directly under China’s CPG. As a unitary state, China’s central government has comprehensive jurisdiction over all local administrative regions, including the HKSAR. The high degree of autonomy of HKSAR is not an inherent power, but one that comes solely from the authorization by the central leadership. The high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. The high degree of autonomy of HKSAR is subject to the level of the central leadership’s authorization. There is no such thing called “residual power.” With China’s Constitution stipulating in clear-cut terms that the country follows a fundamental system of socialism, the basic system, core leadership and guiding thought of the “one country” have been explicitly provided for. The most important thing to do in upholding the “one country” principle is to maintain China’s sovereignty, security and development interests, and respect the country’s fundamental system and other systems and principles.
It then explained “Two Systems” in “One Country” as follows:
The “two systems” means that, within the “one country” the main body of the country practices socialism, while Hong Kong and some other regions practise capitalism. The “one country” is the premise and basis of the “two systems,” and the “two systems” is subordinate to and derived from “one country.” But the “two systems” under the “one country” are not on a par with each other. The fact that the mainland, the main body of the country, PUI-YIN LO 109
embraces socialism will not change. With that as the premise, and taking into account the history of Hong Kong and some other regions, capitalism is allowed to stay on a long-term basis. Therefore, a socialist system by the mainland is the prerequisite and guarantee for Hong Kong’s practising capitalism and maintaining its stability and prosperity. For Hong Kong to retain its capitalist system and enjoy a high degree of autonomy with “Hong Kong people governing Hong Kong” according to the Basic Law, it must fully respect the socialist system practised on the mainland in keeping with the “one country” principle and, in particular, the political system and other systems and principles in practice. The mainland should respect and tolerate the capitalism embraced by Hong Kong while upholding its socialist system, and draw on the successful experience of Hong Kong in economic development and social management. Only by respecting and learning from each other can the “two systems” in the “one country” coexist harmoniously and achieve common development.
OCTS being implemented by the Basic Law, enacted pursuant to the PRC Cons- titution, the White Paper next called for “a full understanding of the provisions of the Basic Law,” which –
are not isolated from but interrelated with each other. Each of these provisions must be understood in the context of the Basic Law and the HKSAR system as a whole. The implementation of the Basic Law shows that if we comprehend individual provisions of the Basic Law in an isolated way without taking into account the Basic Law as a whole, stressing one aspect while ignoring others, ambiguity or even contentious interpretation will occur, which will severely hamper the implementation of the Basic Law. Only by comprehensively understanding all the provisions of the Basic Law can we find that the HKSAR system, along with all its components, is an integrated whole complementary to each other and that this system plays the role of protecting the fundamental rights and freedoms of Hong Kong residents, and ensures the prosperity and stability of Hong Kong.
Interpretations of the NPCSC shall be followed and the fact that the NPCSC exercises the power of interpretation of the Basic Law in accordance with law “is aimed at maintaining the rule of law in Hong Kong, as it oversees HKSAR’s implementation of the Basic Law and protects the high degree of autonomy of the Region.” Finally, the White Paper indicated that the systems and mechanisms in the implementation of the Basic Law would have to be further improved:
It is necessary to, with an eye to the lasting peace and order in Hong Kong, exercise well the power invested in the central government as prescribed in the Russian Law Journal Volume IX (2021) Issue 2 110
Basic Law and see to it that the relationship between the central government and HKSAR is indeed brought onto a legal and institutionalized orbit.
The Basic Law has thus been explained as the instrument of the unitary socialist state of the PRC exercising overall and comprehensive jurisdiction over the SAR it establishes: Each and every act of governance by the Central Authorities has been done “in accordance with law.”
3.2. The Liaison Office of the Central People’s Government and the Management of the United Front The CPG’s resident organ in the HKSAR is the Liaison Office. It evolved from the PRC’s representative institution in Hong Kong during the time of the British colonial administration, which operated in the guise of the Xinhua News Agency Hong Kong Branch. By a notification to the HKSAR Government in 1999, the CPG stated that the Liaison Office’s functions include: (1) liaising with the Office of the Commissioner of the Ministry of Foreign Affairs in the HKSAR and with the Hong Kong Garrison of the Chinese People’s Liberation Army; (2) contacting and assisting the relevant departments of Mainland China in the administration of PRC-funded institutions in Hong Kong; (3) promoting exchanges and cooperation in economic, education, science, culture, sports and other fields between Hong Kong and Mainland China; (4) liaising with people of all sectors of the Hong Kong community, enhancing exchanges between Mainland China and Hong Kong and reflecting the opinions of Hong Kong residents about Mainland China; (5) handling Taiwan-related affairs;64 and (6) undertaking other tasks assigned by the CPG.65 The organization chart of the Liaison Office not only takes care of all these functions but also include specific divisions for propaganda and culture, communications with Hong Kong societies, communications on police matters, youth work, legal issues, and works based on the geographical divisions of Hong Kong Island, Kowloon and New Territories. The Liaison Office, like its predecessor, is also the base of the CPC’s operating unit in Hong Kong, namely the Hong Kong Work Committee. This work committee works under the direction and supervision of a coordination panel on Hong Kong and Macao Work of the Central Committee of the CPC.66 Although the CPC does not
64 the authorities in Taiwan are wary of the Liaison Office’sT aiwan-related functions, raising concerns that officials fromT aiwan visiting the premises of the Liaison Office might signal acceptance of the PRC’s application of the OCTS model for reunification ofT aiwan; see Han’s Visit to Beijing Offices “Politically Sensitive”: MAC, Focus Taiwan, 27 March 2019 (Mar. 5, 2021), available at http://focustaiwan.tw/news/ acs/201903270012.aspx. 65 Wang 2019, at 241–242. 66 the first panel on Hong Kong andM acao work was established by the Central Committee of the CPC in 1978; see CPC Central Decides to Establish Hong Kong and Macao Panel on 12 August 1978 (in Chinese) (Mar. 5, 2021), available at http://www.todayonhistory.com/8/12/ZhongYangJueDingChengLiGangAoXiaoZu. html. The Central Committee’s panel is customarily chaired by a member of the Politburo and the PUI-YIN LO 111 operate openly in Hong Kong, it is clear that officers of the LiaisonO ffice are part of a “second governance team,”67 functioning in an equal (if not higher) profile with the HKSAR Government, discharging tasks of coordination that the HKSAR Government might feel constrained from performing due to its imperative of maintaining an appearance of political neutrality in the watch of the various political factions in Hong Kong and of the international diplomatic corps and press stationed in Hong Kong. These efforts have reportedly included collecting views from individuals of various sectors of the community and offering patronage to selected “patriots” in various roles including appointments to political consultative conferences at the national and regional levels and electoral prospects to the Hong Kong delegation to the NPC,68 coordinating the “pro-Establishment” political factions in Hong Kong to attain the maximum number of seats in open elections in Hong Kong, mobilizing the considerable manpower and other resources associated with the many PRC-funded corporations and businesses in Hong Kong69 and the social organizations affiliated with the Hong Kong patriotic front in elections and the public debate of social and political issues, furthering the propaganda work undertaken by mass media outlets,
present head is Han Zheng, the first Vice-Premier; see Kimmy Chung, Chinese Vice-Premier Han Zheng the “Right” Man in Charge of Hong Kong Affairs as City Shuns Political Gridlock for Economic Growth, South China Morning Post, 28 June 2018 (Mar. 5, 2021), available at https://www.scmp.com/news/hong-kong/ politics/article/2152765/chinese-vice-premier-han-zheng-right-man-charge-hong-kong. For a history of the activities of the CPC in Hong Kong, see Christine Loh, Underground Front: The Chinese Communist Party in Hong Kong (2nd ed. 2018). 67 the notion of the “second governance team” consisting of Mainland Chinese cadres was first men- tioned by Cao Erbao, the then head of research division of the Liaison Office, in a news article in 2008; see Loh 2018, at 3. An English translation is available at http://www.civicparty.hk/cp/media/ pdf/090506_cao_eng.pdf. Jie Cheng wrote subsequently to confirm the raising of this notion as an indicium of a change in policy of the CPC towards Hong Kong; see Jie Cheng, The Story of a New Policy, Hong Kong J. (2009) (Mar. 5, 2021), available at http://www.hkbasiclaw.com/Hong%20Kong%20 Journal/Cheng%20Jie%20article.htm. 68 this is the long hand for the traditional labour intensive “United Front” work of co-optation and persuasion; see Loh 2018, at 27–41. An achievement of the “United Front” efforts in the legal sector was the co-optation of a serving Chairman of the Hong Kong Bar Association to serve in the Guangdong Committee of the Chinese People’s Political Consultative Conference; see Chairman Appointed Guangdong Political Consultative Conference Member, Hong Kong Bar Association “Fallen,” Apple Daily, 16 January 2008 (in Chinese) (Mar. 5, 2021), available at s.nextmedia.com/apple/a. php?i=20080116&sec_id=4104&s=0&a=10649375. 69 Joseph Lian has pointed out that party organizations are established not only in the PRC’s state- owned enterprises and state-funded corporations, but also in non-state firms (including foreign companies), creating a party-corporate complex in the Chinese economy: Yi-Zheng Lian, China, the Party-Corporate Complex, New York Times, 12 February 2017 (Mar. 5, 2021), available at https://www. nytimes.com/2017/02/12/opinion/china-the-party-corporate-complex.html. Lian also pointed to the activities of state owned enterprises in Hong Kong of pressuring their employees to vote for certain candidates in elections and of Mainland Chinese money serving to restrict civil society and communal movements in Hong Kong, suggesting that the purchase of local assets by foreign and Mainland capital should be regulated by law; see Yi-Zheng Lian, Red Capital in Hong Kong, New York Times, 1 June 2017 (Mar. 5, 2021), available at www.nytimes.com/2017/06/01/opinion/red-capital- in-hong-kong-china-investment.html. Russian Law Journal Volume IX (2021) Issue 2 112 publishing houses, and bookstores (some of which are in fact owned indirectly by the Liaison Office),70 and supporting counter-groups organized to oppose civil society organizations or mass movements in Hong Kong.71 A more recent trend from the CPC and the CPG’s station in Hong Kong involves the Liaison Office’s Director or spokesperson making speeches and issuing statements on matters of public concern in Hong Kong.72 From the perspective of democratic centralism, this has to be regarded as an assertion of leadership and ideological tutelage over the official governmental institutions of the HKSAR. While the CPC has not “come out” in Hong Kong yet, it is clear that it is a pervasive presence in Hong Kong, with its policies to be learned by all concerned with the administration of the HKSAR.73
3.3. The “Chief Executive-led” Government as the Accountable Proxy The CPC and the Central Authorities’ consistent rhetoric has been to express support the Chief Executive of the HKSAR in his or her law-based governance of Hong Kong and fulfillment of the constitutional responsibility of safeguarding “China’s sovereignty, security and development interests.”74 This is well understood in relation to the Chief Executive’s status and wide-ranging functions under the Basic Law and HKSAR legislation, which include recommending individuals for appointment as principal officials, appointing judges, specifying the dates of general elections of the Legislation Council and convening its sessions, and introducing Bills and budgets
70 See Blake Schmidt, The Publishing Empire Helping China Silence Dissent in Hong Kong, Bloomberg, 18 Au- gust 2020 (Mar. 5, 2021), available at https://www.bloomberg.com/news/features/2020-08-17/the- publishing-empire-helping-china-silence-dissent-in-hong-kong. 71 Loh 2018, at 202–244. 72 See, e.g., Speech of Luo Huining on the Event of the 2020 National Security Education Day for All in Hong Kong, 15 April 2020 (in Chinese) (Mar. 5, 2021), available at http://www.locpg.gov.cn/jsdt/2020- 04/15/c_1210558684.htm; LOC Spokesman: We Support the Establishment and Improvement of an Education System Compatible with “One Country, Two Systems” in the HKSAR, 12 June 2020 (in Chinese) (Mar. 5, 2021), available at http://www.locpg.gov.cn/jsdt/2020-06/12/c_1210657773. htm; LOC Spokesman: The Disqualification by Returning Officers in Accordance with Law of Some Candidates for the Legislative Council Election Deserves to be Resolutely Supported, 30 July 2020 (in Chinese) (Mar. 5, 2021), available at http://www.locpg.gov.cn/jsdt/2020-07/30/c_1210727946.htm; and Let Patriotism Flourish in Hong Kong: Remarks by Luo Huining, Director of the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region, at the Gala in Celebration of the 71st Anniversary of the Founding of the People’s Republic of China, 30 September 2020 (Mar. 5, 2021), available at http://www.locpg.gov.cn/jsdt/2020-10/01/c_1210825856.htm. 73 the CPC Central Committee dispatched a “publicity” delegation in 2017 to Hong Kong to explain the report of General Secretary Xi Jinping to the 19th National Congress of the CPC to the HKSAR Government; see Government Holds Seminar on 19th National Congress, Press Release of the Government of the Hong Kong Special Administrative Region, 23 November 2017 (Mar. 5, 2021), available at www.info.gov.hk/gia/general/201711/23/P2017112300748.htm. 74 See State Council Information Office, supra note 32; Jinping Xi, supra note 33; and Jinping Xi, Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era (18 October 2017) 67 (2018). PUI-YIN LO 113 into the Legislative Council and signing the enacted legislation and approved budget into effect, as well as his or her constitutional responsibility for the implementation of the Basic Law and CPG’s directives in Hong Kong, and his or her constitutional accountability to the CPG, both under the Basic Law and in respect of his or her appointment by the CPG.75 Hence there is in place a system for the Chief Executive to make verbal and written reports to the CPG on work, which had been used for different purposes to connect the SAR with the Central Authorities, including petitioning the Central Authorities for an interpretation of a provision of the Basic Law or a decision on the next step in the development of the political system,76 and signifying openly Central support of a decision made by the Chief Executive.77 Political support of the Chief Executive is coupled with theoretical insistence on the core position of the Chief Executive in the SAR system based on OCTS. Deng Xiaoping stated in 1987 in a meeting with members of the Basic Law Drafting Committee that “it would not be appropriate for [Hong Kong’s system] to copy those of Britain and the United States with, for example, separation of the three powers” (sanquan fenli 三權分立).78 Since then, mainland officials and scholars have taken care not to use the term ‘separation of the three powers’ to characterise the political system established by the Basic Law. On completion of the drafting process of the Basic Law, Ji Pengfei, Chairman of the Basic Law Drafting Committee, explained the draft Basic Law to the NPC session that enacted the Basic Law in April 1990: “The executive authorities and the legislature should regulate each other as well as co-ordinate their activities.” The Chief Executive, as the head of the SAR and its Government who is accountable to the CPG and the SAR, “must have real power which, at the same time, should be subject to some restrictions.”79
75 article 73(9) of the Basic Law provides for the impeachment of the Chief Executive by the Legislative Council but a Chief Executive so impeached is not removed by operation of law; the impeachment must be reported to the CPG for decision. On the other hand, Article 52(2) and (3) requires the Chief Executive to resign to resolve an impasse between him or her and the Legislative Council, one that continues to persist in spite of dissolution and fresh elections of the latter. 76 two NPCSC interpretations, adopted in 1999 and in 2005 respectively, were initiated by a report from the Chief Executive/Acting Chief Executive. NPCSC decisions on further development of the HKSAR’s political system in 2004, 2007 and 2014 were adopted after the submission of a report of the Chief Executive pursuant to a procedure prescribed under the NPCSC Interpretation of 6 April 2004. 77 the CPG issued a state letter (Guo Kan) to the Chief Executive on 26 February 2019 in light of the Chief Executive in Council dismissing the appeal by the Hong Kong National Party against the decision of the Secretary for Security to prohibit its operation under HKSAR laws; see Jeffie Lam et al., Beijing Backs City Government’s Ban on Hong Kong National Party, Leader Carrie Lam Says, South China Morning Post, 26 February 2019 (Mar. 5, 2021), available at http://www.scmp.com/news/hong-kong/politics/ article/2187744/beijing-backs-city-governments-ban-hong-kong-national-party. 78 Deng Xiaoping on the Question of Hong Kong, supra note 12, at 55. 79 Pengfei Ji, Explanations on “The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft)” and its Related Documents, Third Session of the Seventh National People’s Congress, China, 28 March 1990 (Mar. 5, 2021), available at https://www.basiclaw.gov.hk/ en/basiclawtext/images/basiclawtext_doc10.pdf. Russian Law Journal Volume IX (2021) Issue 2 114
However, as enacted, the Basic Law’s provisions do reflect, to lawyers and scholars schooled in the common law tradition, an institutional and functional separation of powers. HKSAR judges have in fact interpreted the Basic Law as incorporating a doctrine of separation of powers and applied it as a feature of Hong Kong’s Rule of Law in the adjudication of cases concerning the balance of powers between the HKSAR’s coordinate branches of government and how prepared the judicial authority is to check or supervise them.80 That had not appealed to Mainland Chinese legal scholars and members of the former Basic Law Drafting Committee, who advocated that the key term that would correctly characterise the political system of the HKSAR is “executive-led government” (xingzheng zhudao行政主導, also translated as “executive dominance”).81 Hong Kong academics had publicly challenged this notion in response.82 Official support of the Mainland characterization came in 2007, when Wu Bangguo, the then Chairman of the NPCSC, expressed the view that a key characteristic of the political system of the Hong Kong SAR is “executive-led government” with the Chief Executive as the core (yi xingzheng zhangguan wei hexin de xingzheng zhudao以行政長官為核心的行政主導).83 In July 2010, Qiao Xiaoyang, the then Deputy Secretary-General of the NPCSC, noted in a speech in Macau that while there exists a kind of division of power within the political system prescribed by the Basic Law of Hong Kong and the Basic Law of Macau, it would be wrong to act on the basis of the concept of “separation of the three powers” instead of the actual provisions of the Basic Law, which ought to be read as “a socialist document” with a political system of “executive-led government.”84 General Secretary and President Xi Jinping, in the Report to the 19th National Congress of the CPC on 18 October 2017, referred to the OCTS policy as an integral component of “Xi Jinping’s Thought on Chinese-style Socialism for the New Age.” Xi reiterated that the Chief Executive of the SAR occupies the core of its political system.85 The imprint of this matter as part of the paramount guiding ideology of the PRC has concluded the discussion.
80 See Pui Yin Lo & Albert H.Y. Chen, The Judicial Perspective of “Separation of Powers” in the Hong Kong Special Administrative Region of the People’s Republic of China, 5(2) J. Int’l Comp. L. 337 (2018). 81 Introduction to the Basic Law of the Hong Kong Special Administrative Region 345–350 (Shu-wen Wang ed., 2nd ed. 2009); Weiyun Xiao, On the Hong Kong Basic Law 640–644 (2003); and Albert Chen, “Executive-Led Government”, Strong and Weak Governments and “Consensus Democracy” in Hong Kong’s Constitutional Debate, supra note 13, at 9. 82 See Lo 2014, at 42–46. 83 Bangguo Wu, Enforce the Basic Law of the Hong Kong Special Administrative Region in Depth, Push Forward the Grand Implementation of ‘One Country, Two Systems,’ National People’s Congress, 6 June 2007 (in Chinese) (Mar. 5, 2021), available at http://www.gov.cn/ldhd/2007-06/06/content_639111.htm. 84 Qiao Xiaoyang, Studying the Basic Law, Upgrading the Quality of Civil Servants: A Speech at the Graduation Ceremony of the “Advanced Course of the Basic Law of MSAR,” 6 Acad. J. of One Country, Two Systems 1, 4 (2010). 85 Jinping Xi, supra note 74. PUI-YIN LO 115
3.4. National Economic and Social Development Planning and the Greater Bay Area The CPC has been the vanguard of national economic and social development; this has been achieved through its proposal and steering of periodic national economic and social development plans. State planning, or macro-regulation and control, is plainly a principal feature of the socialist market economy practised in China, with the state-owned economy being the leading force and the state being responsible for its consolidation and growth.86 Every five years, the NPC adopts a national economic and social development plan for the PRC.87 Since the 12th Five Year Plan for Economic and Social Development of the People’s Republic of China (2010–2015), the HKSAR and the MSAR have been included as part of the plan with their separate chapter. Although one part of the chapter repeats the basic premises of OCTS, the Basic Law and support of the SAR Government, the remainder of the chapter describes the SARs as having positions and roles in the PRC’s economic development and opening up, outlines the economic strengths and designations of the HKSAR and MSAR and the economic sectors and initiatives that are to be developed in each of the SARs, plus an emphasis in deepening cooperation between the Chinese Mainland (particularly the neighbouring Guangdong Province) and the SARs.88 While the SARs had since 2003 been having strengthened trade and investment cooperation under the framework of bilateral Closer Economic Partnership Arrangements, they were adopted in the form of free trade agreements between customs territories and members of the World Trade Organization as voluntary agreements for trade facilitation.89 Inclusion of the SARs in national economic and social development planning is another matter, bearing in mind that what the NPC has gone beyond the economic and financial cooperation and facilitation between the Chinese Mainland and the SARs and into matters of cooperation on social development, living standards, culture, education, environmental protection, and other areas, as well as promotion of a quality living area in the Greater Pearl River Delta region and advancing the development of the Guangdong-Hong Kong-Macao Greater Bay Area.
86 PRC Constitution, Arts. 6, 7, 15. 87 a s to the recent state planning process by the five-year plans,see Sebastian Heilmann, Red Swan: How Unorthodox Policy Making Facilitated China’s Rise 155–158, 173–194 (2018). 88 the 12th Five Year Plan for Economic and Social Development of the People’s Republic of China (2010– 2015), Ch. 57; and the 13th Five Year Plan for Economic and Social Development of the People’s Republic of China (2016–2020), Ch. 54 (Mar. 5, 2021), available at http://en.ndrc.gov.cn/policyrelease_8233/201612/ P020191101482242850325.pdf. 89 See Wenwei Guan, China’s Free Trade from SEZs to CEPA and FTZs: The Beijing Consensus in Global Convergence and Divergence in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation 104 (Yun Zhao & Michael Ng eds., 2018). Russian Law Journal Volume IX (2021) Issue 2 116
The Greater Bay Area project of developing nine areas of Guangdong Province, Hong Kong and Macao into a regional grouping rivaling regions such as the Silicon Valley is an ambitious national strategy personally conceived, deployed and advanced by President Xi.90 It involves not only infrastructure projects like the Hong Kong- Zhuhai-Macao Bridge and the Guangdong-Shenzhen-Hong Kong Express Rail Link, but, more importantly, harmonization for the purpose of removing barriers in the movement of people, capital and information,91objectives that might go beyond the commonplace regional planning efforts.92 The Outline Development Plan for this Greater Bay Area, unveiled on 18 February 2019, is all encompassing, covering innovation and technology, infrastructural connectivity, modern manufacturing and service provision, ecological conservation, education and talents, culture and leisure, employment and entrepreneurship, health, social security and social governance, and servicing the Belt and Road Initiative and global competitiveness. As to how all these developments are to be implemented, a central leading group for the development of this Greater Bay Area has been established, “relevant central ministries” would formulate “concrete policies and measures,” keep track of progress in implementation, conduct evaluation and assessments and put forward proposals for refinement, timely reports on major issues would be made to the CPC Central Committee and the State Council, and there is recognized in the Outline Development Plan that there have to be “breakthroughs in systems and mechanisms.”93 If the centralized coordination experienced in regional planning and the “crisis mode” leadership approach of President Xi are to serve as references, economic development in Hong Kong would henceforth be subject to guidance at the national level, with the HKSAR Government producing initiatives and implementations that would serve the macro- regulatory imperatives; it is up to the HKSAR Government to recognize leeway for experiment and innovation, albeit under the purview of the leading group.94 This is somewhat a contradiction, for innovation and global competitiveness to be planned and implemented from top-down. A greater contradiction in these Centre-planned economic and social deve- lopments for Hong Kong lies in their imposition of the national socialist system on
90 See Jinping Xi, supra note 74, at 68; and Office of the Leading Group for Development of the Guan- gdong-Hong Kong-Macao Greater Bay Area: Building International First Class Bay Area, Advance Livelihood Benefits, People’s Daily, 19 February 2019 (in Chinese) (Mar. 5, 2021), available at http:// cpc.people.com.cn/BIG5/n1/2019/0219/c64387-30804195.html. 91 See Ben Bland, Greater Bay Area: XI Jinping’s Other Grand Plan, Financial Times, 3 September 2018 (Mar. 5, 2021), available at www.ft.com/content/fe5976d8-ab81-11e8-94bd-cba20d67390c. 92 See Heilmann 2018, at 159–164. 93 See Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area, 18 February 2019 (English translation) (Mar. 5, 2021), available at https://www.bayarea.gov.hk/filemanager/en/ share/pdf/Outline_Development_Plan.pdf. 94 See Heilmann 2018, at 188–189, 200–211. PUI-YIN LO 117 a regional economy and society that is guaranteed by its foundational law to be capitalist with its own way of life.95 But that is a contradiction that will be celebrated and not condemned in Hong Kong, so long as tangible benefits could be yielded in the result to some, and hopefully the better, quarters of the Hong Kong community.96 In any event, Hong Kong has become increasingly dependent on the PRC’s economy and economic and financial policies,97 and the servicing of the PRC’s needs in the global economy.98 A pure and principled approach in the implementation of the Basic Law is not to be a hinderance to “development” and “progress” preferred by the Central leadership and adopted by the SAR’s governmental elites.
3.5. The Hong Kong National Security Law Both the Basic Law of the HKSAR and the Basic Law of the MSAR provides that the SAR “shall” enact, “on its own,” legislation to prohibit specified categories of acts endangering national security.99 However, while the MSAR has discharged this “cons- titutional duty” to enact national security legislation in 2009,100 and has established a Commission on the Defence of National Security since 2018,101 the HKSAR has not been able to enact national security legislation since its establishment in 1997. As it is well known, Hong Kong was in civil unrest in the latter half of 2019 due to the escalated the “anti-extradition law” protests. In the midst of the confrontations, Hong Kong police used multiple types non-lethal and chemical ammunition. Protestors responded with bricks, slingshots, high-powered laser pointers, sharpened objects and petrol bombs. In addition, on 1 July 2019, protestors stormed into the chamber of the HKSAR’s Legislative Council and caused significant damage to the building and facilities there. And, on 21 July 2019, protestors besieged the building of the Liaison Office and, in the course of the event, defaced the national emblem.
95 Basic Law of the HKSAR, Art. 5. 96 Some quarters in the Hong Kong community will lament over the loss of Hong Kong identity and distinctiveness in the development and consequential subsuming of Hong Kong into the Greater Bay Area; see Agnes Ku, Identity as Politics: Contesting the Local, the National and the Global in Routledge Handbook of Contemporary Hong Kong 451 (Tai-lok Lui et al. eds., 2019). 97 See Yun-wing Sung, Becoming Part of One National Economy: Maintaining Two Systems in the Midst of the Rise of China in Routledge Handbook of Contemporary Hong Kong, supra note 96, at 66. 98 See David Meyer, Hong Kong: China’s Global City in Routledge Handbook of Contemporary Hong Kong, supra note 96, at 414; and Ho-fung Hung, Chinese State Capitalism in Hong Kong in Id. at 430. 99 Basic Law of the HKSAR, Art. 23 and Basic Law of the MSAR, Art. 23. 100 See Lei relativa à defesa da segurança do Estado (Lei No 2/2009) (Mar. 5, 2021), available at http:// images.io.gov.mo/bo/i/2009/09/lei-2-2009.pdf. English translation of Lei No 2/2009 is available at http://www.cecc.gov/resources/legal-provisions/macau-special-administrative-region-national- security-law-chinese-and. 101 See National Security Defence Commission Holds This Year’s 2nd Session, Macaonews, 25 September 2020 (Mar. 5, 2021), available at http://macaonews.org/national-security-defence-commission-holds- this-years-2nd-session/. Russian Law Journal Volume IX (2021) Issue 2 118
On a weekly basis between July and November 2019, hundreds and thousands of Hong Kong residents participated in strikes, vandalism, street battles, obstruction of vital infrastructure including the Hong Kong International Airport, the metro system, and the cross-harbour tunnel, and occupation of university campuses. The protests divided Hong Kong society; there were occasions of lynching of individuals and damaging and looting of shop premises.102 The CPC decided to act. On 31 October 2019, the fourth plenary session of the 19th Central Committee of the CPC adopted the Decision of the Central Committee Plenary Session on several important questions on upholding and improving the Socialist System with Chinese Characteristics and advancing the modernization of the national governance system and governance ability. Section 12 of the Decision concerned the system of “One Country, Two Systems.” It elaborated on the matter of improving the system for the Central Authorities to exercise comprehensive jurisdiction over the SARs in accordance with the Constitution and the Basic Law for the purposes of staunchly safeguarding national sovereignty, security and development interests and safeguarding the long-term prosperity and stability of the SARs, and ensuring no tolerance of any act that challenges the bottom line of “One Country, Two Systems” or undermining national unification. It stated that such improvements would involve, among others, establishing and improving the legal system and enforcement mechanism of the SARs for safeguarding national security; supporting the strengthening of the power of law enforcement of the SARs, strengthening education on the Constitution, the Basic Law, the national condition, Chinese history and Chinese culture in Hong Kong society (particularly in relation to public servants and young people) so that the national awareness and patriotism of Hong Kong compatriots would be enhanced; and resolutely preventing and restraining external forces from interfering in Hong Kong affairs and conducting separatist, subversive, infiltrating and sabotage activities, so that Hong Kong would have long term governance and order.103 The 2020 NPC Session, which was delayed by the COVID-19 pandemic, adopted a decision on 28 May 2020 to instruct the HKSAR to complete the national security
102 For chronologies of the 2019 Hong Kong Protests prepared by news media and NGOs, see, e.g., New York Times (Mar. 5, 2021), available at http://www.nytimes.com/interactive/2019/world/asia/hong- kong-protests-arc.html; and Human Rights in China (Mar. 5, 2021), available at http://www.hrichina. org/en/2019-hong-kong-protests-timeline. The HKCFA has also summarized “the degeneration of law and order in Hong Kong and the ever-increasing violence and lawlessness” in Hong Kong between June and November 2019 in its judgment in Kwok Wing Hang & Ors v. Chief Executive in Council & Anor [2020] H.K.C.F.A. 42 (21 December 2020) [87]–[97]. 103 See The Decision of the Central Committee of the Communist Party of China on Several Important Questions on Upholding and Improving the Socialist System with Chinese Characteristics and Advancing the Modernization of the National Governance System and Governance Ability, adopted by the Fourth Plenary Session of the Nineteenth Central Committee of the Communist Party of China on 31 October 2019, Xinhuanet, 5 November 2019 (in Chinese) (Mar. 5, 2021), available at http:// www.xinhuanet.com/politics/2019-11/05/c_1125195786.htm. PUI-YIN LO 119 legislation stipulated in the Basic Law of the HKSAR at an earlier date, require the HKSAR’s administrative, legislative and judicial organs to effectively prevent, stop and punish acts and activities endangering national security in accordance with relevant laws and regulations, direct the HKSAR to strengthen the enforcement forces for safeguarding national security and step up enforcement to safeguard national security, and entrust the NPCSC with the formulation of laws for the HKSAR for the purpose of effectively preventing, stopping and punishing acts that seriously endanger national security and activities of foreign or external forces interfering in the affairs of the Hong Kong SAR.104 The NPCSC did so on 30 June 2020 by enacting the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL) and then decided to apply the HKNSL to the HKSAR by adding it to Annex III to the Basic Law of HKSAR. The Chief Executive of the HKSAR promulgated the HKNSL by notice on the same day for the HKNSL to apply to Hong Kong.105 The HKNSL, drafted in the lexicon of law-making in Mainland China,106 serves to: (1) Establish general principles and duties in relation to safeguarding national security for the Hong Kong SAR and its residents;107 (2) Establish institutions of the Hong Kong SAR for safeguarding national security, including the pivot government body of the Committee for Safeguarding National Security (CSNS) chaired by the Chief Executive of the HKSAR and advised by a National Security Adviser;108 (3) Establish the Office of the Central People’s Government in the Hong Kong SAR for safeguarding national security (CPGNSO);109 (4) Prescribe criminal offences of
104 See Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security, adopted at the Third Session of the Thirteenth National People’s Congress on 28 May 2020 (Mar. 5, 2021), available at http://www.elegislation.gov.hk/hk/A215. 105 See Promulgation of National Law 2020 (Mar. 5, 2021), available at https://www.elegislation.gov.hk/ hk/A406. For an unofficial English translation of the HKNSL, see Gazette of the Hong Kong Special Administrative Region (GN (E) 72 of 2020) (Mar. 5, 2021), available at http://www.gld.gov.hk/egazette/ pdf/20202448e/egn2020244872.pdf. 106 article 64 of the HKNSL is a glossary provision that translates some of the penal terms used in the HKNSL to refer to specified terms used in the criminal law and criminal procedure legislation of the HKSAR. 107 HKNSL, Ch. I. 108 HKNSL, Ch. II. The CSNS performs these functions: (1) analyzing and assessing the situation of Hong Kong, making work plans and formulating policies, in relation to safeguarding national security; (2) advancing the development of the legal system and enforcement mechanisms of the HKSAR for safeguarding national security; and (3) coordinating major work and significant operations for safeguarding national security in the HKSAR. The current National Security Adviser is Luo Huining, the Director of the Liaison Office, who is also a Deputy Director of the State Council Hong Kong and Macao Affairs Office and a member of the Central Committee of the CPC. 109 HKNSL, Ch. V. The CPGNSO is staffed with officers of the Chinese Public Security Ministry and State Security Ministry and performs the functions of analysis and assessment of the Hong Kong situation Russian Law Journal Volume IX (2021) Issue 2 120 secession, subversion, terrorism, and collusion with a foreign country or external elements to endanger national security;110 and (5) Prescribe the framework for the investigation, prosecution and punishment of those offences in the Hong Kong ARS , as well as the circumstances and framework for the CPGNSO to exercise jurisdiction in the Hong Kong SAR and the subsequent prosecution and adjudicate of the relevant case by the Chinese procuratorate and court.111 The HKNSL is a striking piece of national law enacted for implementation in the HKSAR. It expressly and directly establishes government bodies of the HKSAR, and also a CPG body in the HKSAR, for safeguarding national security, and stipulates that these bodies are answerable to the CPG and not subject to any form of check, scrutiny and accountability under the systems of the Basic Law of the HKSAR. The HKNSL also provides for a self-contained penal code for safeguarding national security that the HKSAR and Mainland Chinese authorities specified under it, including the courts of the HKSAR, would apply according to its language and the particular context for effective and full enforcement so as to prevent, suppress and punish any act or activity endangering national security in Hong Kong.112 To ensure that every individual and organization in Hong Kong recognizes the importance of national security and complies with the HKNSL, Article 6 of the HKNSL imposes on everyone in the HKSAR the duty to abide by the HKNSL and the laws of HKSAR that safeguard national security and requires a resident of the Hong Kong SAR who stands for election or assumes public office to confirm in writing or take an oath to uphold the Basic Law of the HKSAR and swear allegiance to the HKSAR in accordance with the law. And to make sure that even the judges and lawyers of the HKSAR understand, Article 2 of the HKNSL interprets the Basic Law of the HKSAR to indicate that those Basic Law provisions on the legal status of the HKSAR as an inalienable part of China and a local administrative region coming directly under the CPG are “fundamental provisions” of the Basic Law and that no institution, organization or individual in the HKSAR shall contravene these provisions in exercising their rights and freedoms.113
for providing opinions and making proposals on strategy and policy for safeguarding national security in the HKSAR, overseeing, guiding, coordination and supporting the HKSAR in performing its duties for safeguarding national security, collecting and analyzing intelligence and information concerning nationals security, and handling cases concerning an offence endangering national security upon the approval of the CPG. 110 HKNSL, Ch. III. 111 HKNSL, Chs. IV & V. 112 article 62 of the HKNSL establishes the “prevailing” status of the HKNSL over provisions of the local laws of the HKSAR that are inconsistent with it. 113 this provision may control the proper understanding and application of Article 4 of the HKNSL (which provides that human rights shall be respected and protected in safeguarding national security in the HKSAR); and Article 5 of the HKNSL (which provides that the principle of the rule of law shall be adhered to in preventing, suppressing and punishing crimes of endangering national security, and highlights several principles of criminal justice, including the principle that a person is presumed innocent until convicted by a judicial body). PUI-YIN LO 121
Whilst the HKNSL, as described above, has a profound effect on the existing political, legal and judicial systems of the HKSAR provided under the Basic Law of the HKSAR, this is because the HKNSL adds a layer of governmental responsibilities and powers to the HKSAR. More importantly, the Central Authorities entrusts, through the HKNSL, the primary operational duties with the CSNS, the Chief Executive of the HKSAR and the investigatory and prosecutorial bodies of the HKSAR, with the CPGNSO serving as the support and in particularly rare circumstances, the substitute enforcement body on the ground. The courts of the HKSAR, too, must adjudicate cases of endangering national security in accordance with the applicable law. Hong Kong people continues to rule Hong Kong, albeit with a bigger stick. From this perspective, it is strange to find foreign governments condemning the HKNSL as diminishing the HKSAR’s “high degree of autonomy.”114
Conclusion
Communism prospered on Chinese soil possibly, in part, due to the attraction of some of its sloganized propositions, such as equality (均) and commonness (公), to the intelligentsia educated in the Confucian tradition.115 The CPC captured the hearts and minds of the educated class longing for a force of change to save China from domestic turmoil and foreign aggression.116 The CPC went on to defeat all opposition and achieve governance of the land mass of China. The CPC has adopted the twin goals of realizing Communism and the rejuvenation of the Chinese nation, to be achieved through establishing socialism as China’s basic system and advancing socialist construction, a great project in a great struggle to realize a great dream.117 Commentators are now beginning to consider China a “civilizational state,” in the sense of the Chinese State’s ability to apply China’s cultural self-sufficiency to further the agenda of internal governance and external influence, to the extent of at least constructing an alternative discourse competing with and even excepting or departing from internationally recognized or universal norms or values.118 Before
114 See, e.g., UK Foreign, Commonwealth and Development Office,T he Six-Monthly Report on Hong Kong 1 January to 30 June 2020, 23 November 2020 (Mar. 5, 2021), available at https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/937162/Hong_Kong_ Six_Monthly_Report_January_-_June_2020.pdf. 115 See Ying-shih Yu, The Memoirs of Yu Ying-Shih 49–53 (2018) (in Chinese). 116 a nother contributing factor was personality and idealism surrounding Mao Zedong; see Julia Lovell, Maoism: A Global History (2019). 117 See Jinping Xi, supra note 74, at 16–19; and Jinping Xi, On Several Questions Concerning the Insistence and Development of Socialism with Chinese Characteristics, 7 Qiu Shi (2019) (in Chinese) (Mar. 5, 2021), available at www.qstheory.cn/dukan/qs/2019-03/31/c_1124302776.htm. 118 See Weiwei Zhang, The China Wave: Rise of a Civilizational State (2012); Weiwei Zhang, The China Horizon: Glory and Dream of a Civilizational State (2016); Christopher Coker, The Rise of the Civilizational State Russian Law Journal Volume IX (2021) Issue 2 122 them, Partlett and Ip recognized the congruence of traditional Chinese bureaucratic and historical approach to law and Leninist principles of governance in relation to centralized governance by law.119 The discussion above can show sufficiently that Hong Kong andM acau continue to play their roles in the national rejuvenation project of the Chinese nation, not separately, but in ways coordinated under the leadership of the CPC and implemented through its legal and non-legal nodes and connections with the SARs and their economies and communities. In this connection, the law, Leninist encoded, has served the interests of the CPC and the Central Authorities under its leadership in the governing of Hong Kong. The United States has cancelled the preferential treatment it once accorded to Hong Kong in distinction to that accorded to the PRC.120 Any talk of the Sino-British Joint Declaration 1984 providing international redress is hollow since the PRC, a party to the treaty and the sovereign of Hong Kong, made it known in 2017 that it regards the treaty as “spent.”121 Hong Kong residents’ perception of OCTS has plunged to all time low net rating of minus 40 percentage points.122 Twenty-three years since the reunification with theM otherland, the legal elite of Hong Kong cannot possibly rest on the reputational laurels of the common law and liberal constitutionalism, they have to face the realities of the “One Country” they live under, including the presence of the Central Authorities’ view of legality.
References
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(2019); Gideon Rachman, China, India and the Rise of the “Civilization State,” Financial Times, 4 March 2019 (Mar. 5, 2021), available at www.ft.com/content/b6bc9ac2-3e5b-11e9-9bee-efab61506f44. 119 Partlett & Ip 2016, at 475. 120 See The President’s Executive Order on Hong Kong Normalization, Executive Order 13936, 14 July 2020 (Mar. 5, 2021), available at https://www.federalregister.gov/documents/2020/07/17/2020- 15646/the-presidents-executive-order-on-hong-kong-normalization. 121 See Joyce Ng, Sino-British Joint Declaration on Hong Kong ‘No Longer Has Any Realistic Meaning’, Chinese Foreign Ministry Says, South China Morning Post, 30 June 2017 (Mar. 5, 2021), available at https:// www.scmp.com/news/hong-kong/politics/article/2100779/sino-british-joint-declaration-hong- kong-no-longer-has-any. 122 For the relevant surveys done by the Hong Kong Public Opinion Research Institute on Hong Kong’s public confidence in OCTS (Mar. 5, 2021), available at http://www.pori.hk/pop-poll/cross-strait- relation/k006. PUI-YIN LO 123
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Information about the author
Pui-yin Lo (Hong Kong, China) – Barrister, Part-time Lecturer, University of Hong Kong (Rm. 1705, 17/F, Marina House, 68 Hing Man St., Shau Kei Wan, Hong Kong; e-mail: [email protected]). SOCIALIST CONSTITUTIONAL LEGACIES IN REGIONAL CONSTITUTIONS AND CHARTERS IN RUSSIA
JANE HENDERSON, King’s College London (London, United Kingdom)
https://doi.org/10.17589/2309-8678-2021-9-2-125-147
Russia has a federated structure. It is quite complex, with five different types of subjects of the Federation: republics, territories, regions, an autonomous region, cities of federal significance, and autonomous areas. Each of these subjects of the Federation has its own constitutive law. For a republic within Russia, this document is called a constitution. For each of the other subjects of the Federation, it is called a charter (ustav). These “figurehead” constitutions and charters obviously have great significance for their respective subject of the Federation. However, there are interesting disparities between them. This article explores one aspect of these. It considers the legacy of the Soviet approach to law in the precise wording of the constitutions of Russia’s republics and charters of the other subjects of the Federation. This careful textual analysis reveals that there are a few – although only a few – traces of Russia’s socialist past in the wording of these constitutive documents. However, that may not be the only “remnant of the Soviet past” in the approach taken in relation to these important laws. It is argued that the scarcity of an enforcement mechanism which might allow judicial consideration of any breach of a republican constitution or subject of the Federation charter is strongly reminiscent of the situation of constitutional unaccountability which existed under the Soviet regime.
Keywords: constitutions/charters of subjects of the Federation; constitutionality; Soviet legacy.
Recommended citation: Jane Henderson, Socialist Constitutional Legacies in Regional Constitutions and Charters in Russia, 9(2) Russian Law Journal 125–147 (2021). Russian Law Journal Volume IX (2021) Issue 2 126
Table of Contents
Introduction 1. The Federal Context 2. Limitations of the Research 3. The Importance of Words 4. Legacies of the Soviet Past? 4.1. Theory of Dependent Rights v. Human Rights 4.2. The Sovereignty Issue 4.3. Name of the Legislative Body 4.4. Order of Presentation 4.5. Other Remnants of the Soviet Past? 4.5.1. Characteristics of a Soviet Constitution 4.5.2. Direct Effect 4.5.3. Separation of Powers 4.6. Soviet Style – Lack of a Constitutional/Charter Court? Conclusion
Introduction
Words matter. This is generally true, but even more so if our topic is legislation. It is assumed that particular vocabulary used in important legal regulations is not a matter of whim or chance, but has some significance to the drafters and/or enactors. Whether that significance can be discerned is a separate question. This article examines some of the vocabulary used in the constitutive documents of the subjects of the Russian Federation (RF), to see whether or not there appear to be direct legacies from the Soviet past embedded in their texts. It is not a complete survey, but highlights some interesting features.
1. The Federal Context
Russia is a federation, currently composed (according to Russia) of 85 subjects of the Federation (Federation subjects).1 (The legality of the inclusion into the Russian Federation in 2014 of Crimea and the city of Sevastopol will not be discussed here.2) The Federation
1 Constitution of the Russian Federation, Art. 65. English translation in William E. Butler, Russian Law and Legal Institutions 435–436 (2nd ed. 2018). 2 For a detailed critique, see Anna Jonsson Cornell, Russia’s Annexation of Crimea: A Violation of Russian Constitutional Law? in 1 Uppsala Yearbook of Eurasian Studies 263 (Kaj Hobér et al. eds., 2016). JANE HENDERSON 127 subjects are of different types:3 there are currently 22 republics,4 one autonomous region5 and 4 autonomous areas6 which are theoretically based on a nationality principle. There are also 9 territories,7 46 regions8 (sometimes called provinces in English) and 3 cities of federal significance9 based on a territorial principle. Article 5 of the 1993 Constitution of the Russian Federation (Constitution RF) declares that the different types of Federation subjects “shall be equal subjects of the Russian Federation.”10 However, there are two major differences between the republics within Russia and the rest. Republics may have a state language alongside Russian, and also adopt for themselves a republican constitution, by whatever method they deem appropriate. For all the other Federation subjects the equivalent piece of legislation is called a charter (ustav), and must be adopted by the Federation subject’s legislature.11 The current versions of these constitutive documents are available online.12 Most of the republican constitutions currently in force were adopted in the two or three years following the entry into force of the Constitution RF on the date of its official publication, 25 December 1993. On its own terms the Constitution RF is supreme:
The Constitution of the Russian Federation shall have the highest legal force, direct effect, and be applied throughout the entire territory of theR ussian Federation. Laws and other legal acts applicable in the Russian Federation must not be contrary to the Constitution of the Russian Federation.13 [Article 15(1)]
3 unless otherwise specified, all translations are by the author. 4 Respubliki – singular respublika: Adygeia, Altai, Bashkortostan, Buriatiia, Dagestan, Ingushetiia, Kabardino-Balkariia, Kalmykiia, Karachaevo-Cherkesskaia, Kareliia, Komi, Crimea, Marii El, Mordoviia, Sakha (Iakutiia), Northern Osetia-Alaniia, Tatarstan, Tyva, Udmurt, Khakasiia, Chechnia, Chuvashia. 5 Avtonomnaia oblast’: Evreiskaia avtonomnaia oblast’ (The Jewish Autonomous Region). 6 Avtonomnye okruga – singular avtonomnyi okrug: Nenetskii, Khanty-Mansiiskii-Iurga, Chukotskii, Iamalo-Nenetskii. 7 Kraia – singular krai: Altai, Zabaikal, Kamchat, Krasnodar, Krasnoiar, Perm, Maritime (Primorskii), Stavropol, Khabarov. 8 Oblastei – singular oblast’: Amur, Arkhangelsk, Astrakhan, Belgorod, Briansk, Vladimir, Volgograd, Vologda, Voronezh, Ivanovo, lrkutsk, Kaliningrad, Kaluga, Kemerovo, Kirov, Kostroma, Kurgan, Kursk, Leningrad, Lipetsk, Magadan, Moscow, Murmansk, Nizhegorod, Novgorod, Novosibirsk, Omsk, Orenburg, Orlovsk, Penza, Pskov, Rostov, Riazan, Samara, Saratov, Sakhalin, Sverdlovsk, Smolensk Region, Tambov, Tver, Tomsk, Tula, Tiumen, Ulianovsk, Cheliabinsk, Iaroslavl. 9 Goroda federal’nogo znacheniia: Moscow, St. Petersburg, Sevastopol. 10 Butler 2018, at 422. 11 art 66(2). Butler 2018, at 436. 12 most of them are available at Конституции и Уставы субъектов Российской Федерации [Constitu- tions and Charters of the Subjects of the Russian Federation] (Feb. 23, 2021), available at http:// constitution.garant.ru/region/. 13 Butler 2018, at 425. Russian Law Journal Volume IX (2021) Issue 2 128
However, in 1990 Yeltsin famously told the Federation subjects to “take as much autonomy as you can swallow”14 so it is unsurprising that they did, with the result that during the 1990s there were some noteworthy examples of republican constitutions contradicting the federal Constitution. A rather extreme example, in line with the separatist movement at the time, was the Constitution of the Chechen Republic which was adopted on 12 March 1992 but not replaced until March 2003.15 It specified in its Article 4 that “in the Chechen Republic, Islam is the state religion”16 despite the then federal Constitution giving in Article 50 the right “to profess any religion or not to profess any religion,” and in the second paragraph that “Religious associations in the RSFSR are separated from the state. The state education system is secular.”17 As another example, the Constitution of the Marii El Republic of 24 June 1995 before its amendment by a law of 21 December 2000 forbade in Article 11 private ownership of land, clearly allowed under 1993 Constitution RF Article 9(2).18 In the early 2000s this policy of tolerating inconsistencies with the federal Constitution was reversed. During his first Presidency Putin instituted a drive to ensure conformity of the law of Federation subjects with the federal Constitution and federal laws – the so-called vertikal’ of law (zakon).19 As a result many republics within Russia changed their constitutions to bring them in line. Almost all just amended their existing constitution, but in 2001 the Republic of Tyva completely replaced its 1993 Constitution with a new one. Karelia did likewise, although interestingly that republic still claimed to have been using its Soviet-era “Constitution of the
14 Cited in Jeffrey Kahn,Federalism, Democratization, and the Rule of Law in Russia 148 (2002). Kahn quotes Yeltsin reasserting this on 11 May 1994; Id. at 142 & 156. 15 the timing means that this Chechen Constitution was adopted 19 days before the Russian Treaty of the Federation, “Treaty on Delimiting Subjects of Jurisdiction and Powers between Federal Agencies of State Power of the Russian Federation and Agencies of Power of the Sovereign Republics within the Russian Federation,” which the then Republic of Chechnia-Ingushetia, as well as Tatarstan, famously did not sign. English translation of the Treaty in William E. Butler, Russian Public Law 686 (3rd ed. 2013). 16 admittedly adopted at a time when Chechnia was trying to become independent from Russia. Text in Russian available at https://chechen-government.com/%D0%BA%D0%BE%D0%BD%D1%81%D 1%82%D0%B8%D1%82%D1%83%D1%86%D0%B8%D1%8F-%D1%87%D0%B5%D1%87%D0%B5 %D0%BD%D1%81%D0%BA%D0%BE%D0%B9-%D1%80%D0%B5%D1%81%D0%BF%D1%83%D0 %B1%D0%BB%D0%B8%D0%BA%D0%B8-%D0%B8%D1%87/. An unofficial English translation of the 1992 Constitution is available at https://www.refworld.org/docid/3ae6b5fb8.html. The Preamble opens with the words, “By the will of the Almighty.” 17 1978 RSFSR Constitution as amended to 1 November 1991 (Feb. 23, 2021), available at http:// constitution.garant.ru/history/ussr-rsfsr/1978/red_1978/5478729/. 18 Butler 2018, at 424. For Marii El see http://parliament.mari.ru/title/const.html#_ftn11. 19 See, e.g., comments by Рыбакова С.С. Особенности формирования региональных парламентов в субъектах РФ // Среднерусский вестник общественных наук. 2016. № 11(3). C. 73 [Svetlana S. Rybakova, Features of the Formation of Regional Parliaments in the Subjects of the Russian Federation, 11(3) Central Russian Bulletin of Social Sciences 69, 73 (2016)] (Feb. 23, 2021), also available at https:// cyberleninka.ru/article/n/osobennosti-formirovaniya-regionalnyh-parlamentov-v-subektah-rf. JANE HENDERSON 129
Autonomous Soviet Socialist Republic of Karelia” of 30 May 1978, with updates, until its complete replacement on 7 February 2001. It is these updated republican constitutions, and charters of the other Federation subjects, which are the object of study in this chapter. The author has not looked at agencies of local self-government.20
2. Limitations of the Research
There are three limitations to this current research to be borne in mind. Firstly, most of the time the author only had access to the current constitutions and charters. There are electronic documents with the original constitution of some republics available at the Presidential Library in St. Petersburg (located in the historical Synod building; the Presidential Library opened on 27 May 2009), but very few; unfortunately in this respect the collection is not complete, and indeed some of those in the collection are not the originally adopted version. Secondly, while the author can fairly easily find the current texts of the relevant constituent documents,21 she does not have access to any preparatory documents, debates of the appropriate legislative agencies and so on. She is therefore limited to textual analysis and legal reasoning. Finally, the author has been forced to acknowledge that close scrutiny of all aspects of the constitutive documents of all 85 subjects of the Russian Federation was unfeasible practically, so has been selective, as is explained below.
3. The Importance of Words
There are vast bodies of work on legal semiotics and law and literature, which will not be explored here. However, it is appropriate to flag up some features of the importance of the words used in legislation in Russia. We will note two aspects. Firstly, Russia as a codified legal system, with in general a positivist approach to law, that is, legislation is regarded as the preeminent source of law. This obviously places stress on the written legal text, and carries an implication that vocabulary should be chosen with care and law-making should be done in an orderly, principled and coherent manner.22 This also creates an expectation that the order of treatment of particular topics in any piece of legislation is significant, with the most important
20 Local Self-Government has a separate chapter in the Constitution RF, Ch. 8. 21 See supra text to note 12. 22 For an example of the consideration of high principle in the process of Russian codification,see Viktor A. Dozortsev, One Code or Two?, 2(1) Parker Sch. J. E. Eur. L. 27 (1995). Russian Law Journal Volume IX (2021) Issue 2 130 matters being presented near the beginning.23 As Professor Naumov stated in relation to Russian criminal law:
The [1960] Criminal Code of the RSFSR [Russian Soviet Federated Socialist Republic], as well as of other Soviet republics, proceeded from the principle of protection of state interests first, public interests next, and only afterward the interests of the individual; in contrast, in the criminal codes of developed democratic countries, these priorities are generally reversed. The new [1996 Russian Criminal] code refused to adhere to the old, indigenous tradition and established a new hierarchy of values protected by criminal law – the person, the public, the state.24
In both Codes these priorities are explicit in the order in which the relevant chapters appear. We can thus generalise that both the words used, and the context in which they are used, carry significance. We can see in this respect that the correct use of language is a matter of pressing concern in Russia. In February 2019 it was reported that the Ministry of Justice would take active steps to improve the standard of law-making, including the examination of errors and inconsistencies.25 Earlier, two leading Russian academics put forward a proposal that measures should be taken to rectify defects in the use of Russian in Russian legislation.26 The second aspect to note is that in Russia there is a cultural belief that, in theory at least, a good law should be sufficiently well drafted to cover all eventualities, so that nothing need be left to discretion.27 This approach again stresses the importance of using appropriate vocabulary. In reality of course this principle can break down. Further, close observation has shown that interpretation of specific terms in legislation can be used deliberately to achieve a particular result, even where that appears to be against the plain and ordinary meaning of the legislative text.28
23 See discussion of the ordering of the 1996 Criminal Code of the Russian Federation in Anatoly V. Naumov, The New Russian Criminal Code as a Reflection of Ongoing Reforms, 8(2) Crim. L. Forum 191 (1997). 24 Id. 201–202. 25 Трифонова E. Минюст не возражает против введения правил законотворчества // Независимая газета. 17 февраля 2019 г. [Ekaterina Trifonova, Ministry of Justice Does Not Object to the Introduction of Rules of Law-Making, Nezavisimaia gazeta, 2 February 2019] (Feb. 23, 2021), available at http://www. ng.ru/politics/2019-02-17/3_7510_minyust.html. 26 Белов С.А., Кропачев Н.М. Что нужно, чтобы русский язык стал государственным? // Закон. 2016. № 10. С. 100–112 [Sergey A. Belov & Nikolai M. Kropachev, What Is Needed for the Russian Language to Become the State Language?, 10 Law 100 (2016)]. 27 marina Kurkchiyan, The Impact of the Transition on the Role of Law in Russia, 28(3) Recht der Werkelijkheid, Special Issue on Explorations in Legal Cultures 75 (2007). 28 See, e.g., Anita Soboleva, Use and Misuse of Language in Judicial Decision-Making: Russian Experience, 26(3) Int’l J. Semiot. L. 673 (2013); Anita Soboleva, Legal Terminology from the Rhetorical Perspective: Legal Genres Approach, 3 Pravo. Zhurnal Vysshey shkoly economiki 168 (2015). JANE HENDERSON 131
Nevertheless, as noted at the outset, words matter and the choice of which particular words are used in legislation, as well as the order of presentation of topics, should be a primary concern of a legislature at any level within Russia’s federal hierarchy.
4. Legacies of the Soviet Past?
We now turn to the research the author conducted on the texts in the constitutions and charters of Russia’s Federation subjects, looking for possible legacies of the Soviet past.
4.1. Theory of Dependent Rights v. Human Rights The author was initially inspired to undertake this enquiry about Soviet legacies in the constituent documents of Federation subjects as a result of something she encountered in previous research, examining the comparative treatment of human rights in constitutional and charter courts,29 where such courts existed (unfortunately in only a small minority of Russia’s Federation subjects).30 Whilst checking what rights are specified for citizens under their own federal subject’s constitution or charter, the author surveyed the relevant chapters in each. In the course of this the author was intrigued to find that, whilst most of the constitutive documents entitle their section on rights as “Rights and Freedoms of Man and Citizen” (exactly as the title of Chapter 2 of the current federal Constitution), some republican constitutions – specifically, those of Buriatiia, Ingushetia, Komi, Tatarstan, Tyva and Khakasiia – have reference instead in their relevant chapter title to the “Rights, Freedoms and Duties of Man and Citizen” [Prava, svobody i obiazannosti cheloveka i grazhdanina; Права, свободы и обязанности человека и гражданина]. They are thus using the same wording as that which headed Chapter 6 of 1978 RSFSR Constitution in its original form31 (and Chapter 7 of the more readily available 1977 USSR Constitution32). This seemed to the author to be a clear legacy of the
29 Presentation at the 2016 International Society of Public Law Conference (ICON-S) in Berlin, 17–19 June, on a panel chaired by Lauri Mälksoo on “Constitutionalism in Russia: Comparative Perspectives.” 30 See Jane Henderson & Marina L. Belykh, Regional Constitutional Justice in the Context of Russia’s Aspiration to Be a Rule of Law State, 43(4) Rev. of Central and East Eur. L. 351 (2018) where it is noted at 357 that only 16 out of 85 Federation subjects have an operative court. After that the constitutional court in the Republic of Tyva was abolished, and changes adopted following the 2020 reforms to Article 125(3) of the federal Constitution have eliminated the possibility of subject level constitutional and charter courts after 1 January 2013. 31 Glava 6. Osnovnye prava, svobody i obiazannosti grazhdan RSFSR [Chapter 6. Fundamental Rights, Freedoms and Duties of Citizens of the RSFSR] prior to amendment in April 1992 which brought a new title and almost all of the contents of the RSFSR Declaration of the Rights of Man and Citizen of November 1991. English translation of original version in William B. Simons, Constitution (Fundamental Law) of the Russian Soviet Federative Socialist Republic, 4(3) Rev. Soc. L. 259 (1978). 32 Glava 7. Osnovnye prava, svobody i obiazannosti grazhdan SSSR [Chapter 7. Fundamental Rights, Freedoms and Duties of Citizens of the USSR]. Russian Law Journal Volume IX (2021) Issue 2 132 past and warranted further investigation. It suggested that the basis of rights in those particular republics was that of Soviet “dependent rights,” where citizens were given rights in return for the duties they performed to the state. In the 1977 USSR Constitution this principle was made absolutely explicit in the first paragraph of Article 59: “The realization of rights and freedoms shall be inseparable from the execution by a citizen of his duties.”33 The same wording appeared in the first paragraph of Article 57 of the 1978 RSFSR Constitution.34 Such an approach to rights effectively denies “human rights.” Citizens are not given rights because they are human, but because of the social contract between them and the State, of concrete privileges in return for duties fulfilled.35 In the USSR, a dramatic change in approach to rights was marked by the USSR Declaration of the Rights of Man, adopted on 5 September 1991.36 This was the last legislative act of the USSR Congress of People’s Deputies (CPD) before it dissolved itself in the aftermath of the abortive putsch against USSR President Mikhail Gorbachev on 19 August 1991.37 This worthy document38 was proposed by Academician Vladimir Kudriavstev, at the time a deputy in the USSR CPD as well as being a member of the Central Committee of the Communist Party of the Soviet Union (CPSU). Kudriavtsev was described by Academician William E. Butler as “the most senior Russian jurist during his lifetime.” 39 Kudriavtsev urged the USSR CPD to adopt the Declaration to set a standard during those uncertain times. The Declaration championed “human rights,” specifying in its Article 1 that:
33 e nglish translation by William E. Butler in William E. Butler, Basic Documents on the Soviet Legal System 14 (1983). 34 Simons 1978, at 268. The translation differs slightly. 35 on the Soviet approach to rights, see Jane Henderson, The Constitution of the Russian Federation: A Contextual Analysis 42 (2011). 36 Закон СССР от 5 сентября 1991 г. № 2393-I «Декларация прав и свобод человека» [Law of the USSR No. 2393-I of 5 September 1991. Declaration of Human Rights and Freedoms] (Feb. 23, 2021), available at http://euro-ombudsman.org/reference/laws_and_other_documents/deklaratsiya-sssr- prav-i-svobod-cheloveka. 37 Henderson 2011, at 229. 38 a lthough of questionable enforceability, as conflicting with the Constitution then in force;see Gerard P. van den Berg, Human Rights in the Legislation and the Draft Constitution of the Russian Federation, 18(3) Rev. of Central and East Eur. L. 197, 202, fn. 15 (1992). 39 Jane Henderson, Talking Across the Fence: Cold War Academic Cooperation in the Legal Sphere in The Legal Dimension in Cold War Interactions: Some Notes from the Field 171, 177 (Tatiana Borisova & William B Simons eds., 2012), citing personal information from William E. Butler (2 February 2009). Kudriavtsev became director of the Institute of State and Law of the USSR Academy of Sciences in 1973, and in 1974 was elected a corresponding member of the USSR Academy of Sciences, being confirmed as a full member in 1984. He served as Vice-President of the USSR [subsequently Russian] Academy of Sciences from 1988–2001. In recognition of his academic esteem, Kudriavtsev was awarded the prestigious Demidov Prize in 2002. He was the only ever recipient from the legal field during the Prize’s existence, from 1832-65 and again from 1993 to the present day. He also became a member of the Central Committee of the Communist Party of the Soviet Union. JANE HENDERSON 133
Each person possesses natural inalienable and inviolable rights and freedoms. They are sealed in laws that must correspond to the Universal Declaration of human Rights, international covenants on human rights and other international norms and present declaration.40
Eleven weeks later, on 22 November 1991, the Russian Supreme Soviet adopted the RSFSR Declaration of the Rights of Man and Citizen.41 This followed the lead of the USSR Declaration in introducing inherent rights. On 21 April 1992 the RSFSR Declaration was incorporated into the 1978 RSFSR Constitution.42 This put “human rights” into a Russian Constitution for the first time. The change was marked by a new title to Chapter 5, “Rights and Freedoms of Man and Citizen [Prava i svobody cheloveka i grazhdanina; Права и свободы человека и гражданина]”. This heading is the same as that of Chapter 2 of the 1993 Constitution RF, in which Kudriavtsev had a hand in drafting. He was head of the Constitutional Arbitration Commission which compiled proposals from the Constituent Assembly’s five working groups, to form the draft approved by the Assembly on 26 June. This in turn informed the final draft presented to the public for the national plebiscite on 12D ecember 1993 to adopt a new Constitution. In the light of this major change in approach to rights in Russia, it seemed to the author surprising that six republican constitutions should retain the old Soviet chapter heading. Further investigation revealed that the actual substantive content of the chapters of the six specific republics in general matches the content of rights set out in the federal Constitution. This is unsurprising given that the constitutions and charters of subjects of the Russian Federation should be consistent with the federal Constitution according to the Constitution’s Article 15(1).43 However, it did raise the (unfortunately as yet unanswered) question as to why those republican legislatures accepted the change in substantive approach to incorporate human rights whilst keeping a chapter title symbolic of Soviet dependent rights.
40 Henderson 2011, at 229. 41 Постановление Верховного Совета РСФСР от 22 ноября 1991 г. № 1920-I «О Декларации прав и свобод человека и гражданина» // СПС «КонсультантПлюс» [Resolution of the Supreme Council of the RSFSR No. 1920-I of 22 November 1991. On the Declaration of the Rights and Freedoms of Man and Citizen, SPS “ConsultantPlus”] (Feb. 23, 2021), available at http://www.consultant.ru/document/ cons_doc_LAW_3788/. 42 Закон РФ от 21 апреля 1992 г. № 2708-I «Об изменениях и дополнениях Конституции (Основного Закона) Российской Советской Федеративной Социалистической Республики» // СПС «Консуль- тантПлюс» [Law of the Russian Federation No. 2708-I of 21 April 1992. On Amendments and Additions to the Constitution (Basic Law) of the Russian Soviet Federative Socialist Republic, SPS “ConsultantPlus”] (Feb. 23, 2021), available at http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=EXP&n=2 14032#06244099010396718. 43 See also Constitution of the Russian Federation, Arts. 76(4), (5) & (6). Russian Law Journal Volume IX (2021) Issue 2 134
Added to this, the versions of the republican constitutions to which the author had ready access for her research are those which are current, and, as already noted, in the first few years of this century there was a very strong drive to make sure that the legislation of each federal subject – and perhaps most especially its constitution or charter – was consistent with federal legislation; this is one strong manifestation of the vertikal’ of law noted above.44 Having examined the republics’ constitutions in relation to rights, the author turned to the chapters on rights in the charters of the other subjects of the Federation (which the author had readily to hand as a result of her earlier research), to see if the titles of any of those documents also included a reference to duties. The author thus discovered that Chapter 4 of the Charter for Khabarov territory refe- rences “Rights, Freedoms and Obligations of Man and Citizen” although in the substan- tive articles there is direct reference the rights set out in the federal Constitution. Amongst the regions, Kurgan specifically mentions “Rights, Freedoms and Obligations” in its chapter title. Interestingly, the charters of a few Federation subjects did not seem to say anything directly on rights at all – Novgorod, Ryazan, Saratov and the city of Moscow. Lipetsk region does not have a rights chapter; instead Article 6 simply declares,
On the territory of the region, the observance of the rights to citizenship of the Russian Federation enshrined in the Constitution of the Russian Federation and the exercise in connection with this by each citizen of the Russian Federation of their rights, freedoms and obligations is guaranteed. [emphasis added]
So overall the author’s investigations revealed a small and somewhat disparate group of Federation subjects where the chapter title at least apparently retains the view that there are citizens’ rights, awarded in return for obligations performed, rather than human rights – that is, “rights and freedoms of man and citizen” which are inherent and inalienable. Strangely, this “dependent rights” language pertains even where the substantive rights listed seem clearly to be in accord with the federal Constitution and, one might say, the general international approach to human rights. (Some charters indeed made direct reference to the application of international law on rights: Belgorod, Kostroma, Smolensk region, Tula, and the Jewish autonomous region.) The fact that the author had found what seemed to be clear examples of “Soviet era” wording in some Federation subjects’ constitutive documents inspired her to investigate further what other legacies may remain within these important documents.
44 See supra text to note 19. JANE HENDERSON 135
4.2. The Sovereignty Issue One point the author was unable to explore to its full extent, but which arguably flows directly from the Soviet approach to constitutionalism, is the claim to sovereignty which many of the republics within Russia made in their constitutions before the reforms in the early years of this century to harmonise Federation subjects’ legislation with federal law, noted earlier. Looking back in time, the 1977 USSR Constitution famously declared in Article 76 that, “A Union Republic is a sovereign Soviet socialist state that has united with other Soviet Republics in the Union of Soviet Socialist Republics.” This ascription of each union republic being a “sovereign state” raised a question about the meaning of these words within that context. Soviet sovereignty and statehood clearly signified something different to the general understanding of those concepts within the international law of the non-socialist world. A thorough analysis by Henn-Jüri Uibopuu published in 1979 explored these differences.45 In the very late stage of the USSR’s existence the autonomous republics within union republics also began to claim sovereignty. Jeffrey Kahn noted in his detailed study of developments of federalism in Russia during that period,
In a span of thirty-two months [from late 1988], forty former units of the Soviet Union declared themselves to be sovereign states, an average of one declaration every 23 days.46
Kahn also noted that only 16 republics actually aspired to independence beyond sovereignty.47 The difference between sovereignty and independence is significant. The RSFSR Declaration of State Sovereignty adopted by the new RSFSR CPD on 12 June 199048 did not assert Russia’s independence from the USSR, merely that RSFSR was sovereign so had full state power except for those aspects which it had voluntarily transferred to the USSR. Also, importantly, it asserted that RSFSR law was supreme on its territory; in case of inconsistency, USSR legislation would be suspended there. Thus the state sovereignty of the RSFSR was proclaimed whilst the existence of the USSR (or at least a “renewed USSR”) was not denied (Pervyi S”ezd narodnykh deputatov RSFSR … torzhestvenno provozglashaet gosudarstvennosti
45 Henn-Jüri Uibopuu, Soviet Federalism Under the New Soviet Constitution, 5(1) Rev. of Socialist L. 171 (1979). 46 Kahn 2002, at 102. 47 Id. 48 Декларация о государственном суверенитете Российской Советской Федеративной Социа- листической Республики от 12 июня 1990 г. // СПС «КонсультантПлюс» [Declaration on State Sovereignty of the Russian Soviet Federative Socialist Republic of 12 June 1990, SPS “Consultant- Plus”] (Feb. 23, 2021), available at https://www.consultant.ru/law/podborki/deklaraciya_o_ gosudarstvennom_suverenitete_rossijskoj_sovetskoj_federativnoj_socialisticheskoj_respubliki_ ot_12_iyunya_1990_g./. English translation in Butler 2013, at 1. Russian Law Journal Volume IX (2021) Issue 2 136 suverenitet Rossiiskoi Sovetskoi Federativnoi Sotsialisticheskoi Respubliki na vsei ee territorii i zaiavliaet o reshimosti sozdat’ demokraticheskoe pravovoe gosudarstvo v sostave obnovlennogo Soiuza SSR; Первый Съезд народных депутатов РСФСР … торжественно провозглашает государственный суверенитет Российской Советской Федеративной Социалистической Республики на всей ее территории и заявляет о решимости создать демократическое правовое государство в составе обновленного Союза ССР.)49 The claim, in a number of early republican constitutions adopted in independent Russia, that the particular republic was sovereign, fits with this Soviet approach to the meaning of the word – of having some autonomy but within the constraints of a federalised state. This indeed fits with the meaning used in Russia’s own 1990 Declaration of State Sovereignty.50 However, it seems apparent that by the beginning of the 21st century, the word sovereignty had begun to acquire at least in some Russian contexts51 the more universal meaning, which provoked President Putin to insist that the republics within Russia eliminated that claim from their then constitutions. Nevertheless, a shadow of the original claim by republics within Russia to state sovereignty is retained in some cases in the name of their legislature. As discussed below, half of the 22 republics have the word “State” (Gosudarstvennyi; Государственный) in that name. A move in 2010 to ban the use of that word in that context was not carried through.52
4.3. Name of the Legislative Body One area which presented itself as fruitful to explore in relation to possible remnants of the Soviet past is the name given by Federation subjects to their legislature, that is, their “legislative and representative agency.”53
49 declaration on State Sovereignty of the Russian Soviet Federative Socialist Republic, supra note 48. 50 See, e.g., the Udmurt Constitution of 7 December 1994 (Feb. 23, 2021), available at http://www.prlib. ru/item/420942; note particularly Article 1. 51 See further discussion in Ruth Deyermond, The Uses of Sovereignty in the Twenty-First Century Russian Foreign Policy, 68(6) Eur.-Asia Stud. 6 (2016); William Bowring, What’s in a Word: “Sovereignty” in the Constitutional Court of the Russian Federation, 7(3) Russ. J. Commun. 328 (2015); Mikhail V. Antonov, Conservatism in Russia and Sovereignty in Human Rights, 39(1) Rev. of Central and East Eur. L. 1 (2014); Mikhail V. Antonov, The Legal Conceptions of Hans Kelsen and Eugen Ehrlich: Weighting Human Rights and Sovereignty, 20(20) Revista Direitos Fundamentais & Democracia 39 (2016). 52 Холмогорова В. Региональным парламентам запретят использовать слово «государственный» // Ведомости. 20 января 2010 г. [Vera Kholmogorova, Regional Parliaments Will Be Prohibited from Using the Word “State,” Vedomosti, 20 January 2010] (Feb. 23, 2021), available at https://www. vedomosti.ru/politics/articles/2010/01/20/regionalnym-parlamentam-zapretyat-ispolzovat-slovo- gosudarstvennyj. 53 the author is grateful to Sergei Belov for suggesting this line of enquiry. JANE HENDERSON 137
This has to be approached with some caution, as the Russian word “Soviet” literally means Council, so that, for example, the upper chamber of the current Russian bicameral legislature, the Federal Assembly (Federal’noe Sobranie; Федеральное Собрание) is called the Sovet Federatsii (Совет Федерации). This is variously translated into English as the Soviet of the Federation,54 the Council of the Federation, or the Federation Council.55 The first of these might be thought to have “Soviet” connotations, but this is a construct of the translation choice.56 It is also important to note that since 2010 the Federal Law “On General Principles of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation”57 has restricted the choice of name of Federation subjects’ legislative agencies. Following an undertaking given in his November 2009 annual Address to the Federal Assembly, President Medvedev introduced amendments to that federal law, the main purpose of which was to regulate the number of deputies in Federation subjects’ legislatures. Under the revised law this would be proportionate to the population of the particular federal subject. However, at the same time, Article 4(2) of the federal law was amended to include the text here italicised:
The name of the legislative (or representative) agency of state power of the subject of the Russian Federation and the structure thereof shall be established by the constitution (or charter) of the subject of the Russian Federation, taking into account the historical, nationality, and other traditions of the subject of the Russian Federation. In doing so the name of the said agency may not contain word combinations comprising the foundation of the names of federal agencies of State power.58 [Naimenovanie zakonodatel’nogo (predstavitel’nogo) organa gosudastvennoi vlasti sub”ekta Rossiiskoi Federatsii, ego struktura ustanavlivaiutsia konstitutsiei (ustavom) sub”ekta Rossiiskoi Federatsii s uchetom istoricheskikh, natsional’nykh i inykh traditsii sub”ekta Rossiiskoi Federatsii. Pri etom naimenovanie ukazannogo organa ne mozhet soderzhat’ slovosochetanii, sostavliaiushchikh osnovu naimenovanii federal’nykh organov gosudastvennoi
54 as for instance Butler 2018, at 447. 55 as for instance in Peter B. Maggs et al., Law and Legal System in the Russian Federation 1016 (7th ed. 2020). 56 See discussion of translation issues in Ch. 2 of Butler 2018, at 27 ff. 57 Федеральный закон от 6 октября 1999 г. № 184-ФЗ «Об общих принципах организации зако- нодательных (представительных) и исполнительных органов государственной власти субъектов Российской Федерации» // СПС «КонсультантПлюс» [Federal Law No. 184-FZ of 6 October 1999. On General Principles of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation, SPS “ConsultantPlus”] (Feb. 23, 2021), available at http:// www.consultant.ru/document/cons_doc_LAW_14058/. English translation by William E. Butler with amendments up to 2013 in Butler 2013, at 714. 58 By Federal Law of 23 December 2010 No. 376-FZ. Translation of Article 4(2) as amended Id. 717–718. Russian Law Journal Volume IX (2021) Issue 2 138
vlasti; Наименование законодательного (представительного) органа государственной власти субъекта Российской Федерации, его структура устанавливаются конституцией (уставом) субъекта Российской Федерации с учетом исторических, национальных и иных традиций субъекта Российской Федерации. При этом наименование указанного органа не может содержать словосочетаний, составляющих основу наименований федеральных органов государственной власти.]59 [emphasis added]
Thus, whilst not explicitly disallowing the use of, for example, the word “State,” this prohibits a federal subject from calling its legislative agency “State Duma,” as this would be the same as the elected chamber of the Federal Assembly. The author does not have data on whether the names of any republican and regional legislatures changed as a result of the 2010 amendment. However its provisions on deputies’ numbers led to the demise of the two bicameral legislatures which had existed, the Great Khural (Velikii Khural; Великий Хурал ) of the Republic of Tyva and the Legislative Assembly of the Sverdlovsk Region, to be replaced respectively by a unicameral Supreme Khural (Parliament) (Verkhovnyi Khural (parlament); Верховный Хурал (парламент)) in Tyva and unicameral Legislative Assembly (Zakonodatel’noe Sobranie Sverdlovskoi oblasti; Законодательное Собраниe Свердловской области) in Sverdlovsk.60 Even bearing in mind the restriction imposed by Article 4(2) of the “General Prin- ciples of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation,” examination of the terminology used in the republican constitutions and regional charters threw up some interesting results. Of the 22 republics, not one of them followed the federal lead and adopted the name Duma for its legislative and representative body. This stands in contrast to 2 out of the 9 territories, 23 out of the 46 regions, one city (Moscow) and two autonomous areas (Khanty-Mansiiskii-Iurga and Chukotskii), all of which have Dumas. Contrariwise, 7 of the 22 republics use the word Council (Sovet; Cовет), all but one in the form of a State Council (Gosudastvennyi Sovet; Государственный совет). Khakasiia is the exception with a Supreme Soviet (Verkhovnyi Sovet; Верховный Совет), as in Soviet times. By contrast, not one single territory has a Soviet and only one region has a Soviet: the Lipetsk Regional Soviet (Oblastnoi Sovet; Областной Совет), whilst one region, Orlovsk,61 has a Soviet of People’s Deputies (Sovet narodnykh
59 russian version is available on Garant (Feb. 23, 2021), available at http://base.garant.ru/12117177/1 b93c134b90c6071b4dc3f495464b753/#ixzz5iWBtvqIr. 60 For Tyva see История парламентаризма в Республике Тыва [History of Parliamentarism in the Republic of Tyva] (Feb. 23, 2021), available at http://www.khural.org/info/history/. The Sverdlovsk Legislative Assembly website is at http://zsso.ru. 61 the Keremovo Region Legislative Assembly, until 2019 called Sovet narodnykh deputatov is in Soviet Square, with its address as 58 Soviet Prospect. The address of the Orlovsk Soviet of People’s Deputies is 1 Lenin Square. JANE HENDERSON 139 deputatov; Совет народных депутатов) (as did Kemerovo until 2019),62 which, after the 1977 USSR Constitution, was the formal name of Soviets below the level of the Supreme Soviet. By perestroika reforms in 1988, in line with the Resolution on Democratisation adopted at the 19th Party Conference in June 1988, the USSR Supreme Soviet was replaced by the USSR Congress of People’s Deputies (S”ezd Narodnykh Deputatov; Съезд народных депутатов СССР), and a smaller indirectly elected but more permanently sitting Supreme Soviet. The RSFSR Congress of People’s Deputies and its indirectly elected RSFSR Supreme Soviet were instituted in the RSFSR following a constitutional amendment of 27 October 1989.63 However, not one of the current Federation subjects have called their legislature a “Congress.” Republics which do not have a Soviet, with 10 exceptions, call their legislative agency an Assembly (Sobranie; Собрание); 5 of these are a “State Assembly” (Gosudastvennoe Sobranie; Государственное Собрание), and 3 a “People’s Assembly” (Narodnoe Sobranie; Народное Собрание). There is a Legislative Assembly (Zakonodatel’noe Sobranie; Законодательное Собрание) in 7 territories (the other two have Dumas) and in 18 of the regions, along with one Assembly of Deputies (Sobranie deputatov; Собрание депутатов) and one Regional Assembly (Oblastnoe Sobranie; Областное Собрание). Two of the cities of federal significance also have a Legislative Assembly (Zakonodatel’noe Sobranie; Законодательное Собрание) (Saint Petersburg and Sevastopol), as does the one (Jewish) autonomous region, and one of the four autonomous areas (Iamalo-Nenetskii; likewise the Nenetskii autonomous area until 2019 when it was changed to Sobranie deputatov; Собрание депутатов). The 10 republics which have neither a Soviet not an Assembly have a mix of names, including traditional names for gatherings. Three – Buriatiia, Kalmykiia and Tyva – have a Khural (Хурал); Altai has the State Assembly – El Kurultai of the Republic of Altai (Gosudastvennoe Sobranie – El Kurultai Respubliki Altai; Государственное Собрание – Эл Курултай Республики Алтай); Adygeia the State Council – Khase of the Republic of Adygeia (Gosudastvennyi Sovet – Khase Respubliki Adygeia; Государственный Совет – Хасэ Республики Адыгея); and Bashkortostan the State Assembly – Kurultai of the Republic of Bashkortostan (Gosudastvennoe Sobranie Kurultai Respubliki Bashkortostan; Государственное Собрание – Курултай Республики Башкортостан). Three republics – Kabardino-Balkariia, Northern Osetia-Alaniia, and Chechnia – have a Parliament (Parlament; Парламент). Kalmykiia also includes Parliament in parentheses with its Khural name, as does Karachaevo-Cherkesskaia for its People’s Assembly (Narodnoe Sobranie; Народное Cобрание).
62 See Закон Кемеровской области – Кузбасса от 30 октября 2019 г. «О внесении поправок в Устав Кемеровской области – Кузбасса» [Law of the Kemerovo Region – Kuzbass of 30 October 2019. On Amendments to the Charter of the Kemerovo Region – Kuzbass] (Feb. 23, 2021), available at https:// ako.ru/upload/medialibrary/bf4/117-ОЗ%202019.pdf. 63 t hat version in Russian is available at http://constitution.garant.ru/history/ussr-rsfsr/1978/red_ 1978/5478722/. Russian Law Journal Volume IX (2021) Issue 2 140
Adding to this variety, we notice that the Samara region’s legislature is called the Samarskaia Gubernskaia Duma (Самарская Губернская Дума), using the name for a territorial subdivision, gubernia, which dates back to Peter the Great and was eliminated in the Soviet Union by 1929 at the end of the New Economic Policy. What conclusions can we draw from our survey of the terminology used by Federation subjects for their legislatures? We have seen that the 1999 federal law “On General Principles of Organisation of Legislative (Representative) and Executive Agencies of State Power of Subjects of the Russian Federation,” even with its 2010 amendment, leaves the choice of name to individual Federation subjects, provided there is no exact overlap with the name of any federal agency. There is specific allowance for “taking into account the historical, nationality, and other traditions of the subject of the Russian Federation”64 and seven of the republics have used or included a traditional name within their legislatures’ titles. After the fall of the USSR there was no lustration of officials in post-SovietR ussia, and neither was there a grand campaign to remove all traces of Soviet terminology. Although over time a number of names of places have returned to their pre-Soviet version, this has been done on a case-by-case basis depending on the wishes of the locality. This has led to interesting anomalies such as the former Leningrad returning to being St. Petersburg whilst surrounded by Leningrad region, and former Sverdlovsk re-assuming the name of Yekaterinburg but still within Sverdlovsk region. Overall, however, bearing in mind the possible ambiguity of use of the word Soviet,65 we see that almost all Federation subjects have moved away from what appears to be Soviet heritage terminology. This leaves in focus the few who seem to have retained a name which sounds unequivocally like the language of the socialist past. Khakasiia’s “Supreme Soviet” (Verkhovnyi Sovet; Верховный Совет), Lipetsk’s Regional Soviet (Oblastnoi Sovet; Областной Совет) and Orlovsk’s “Soviet of People’s Deputies” (Sovet narodnykh deputatov; Совет народных депутатов) stand out as appearing to be deliberately evocative of the Soviet Russian regime. Whether we can say the same for the other seven Federation subjects which have included the word “Soviet” in their legislatures’ titles is more debatable, although it is striking that all seven are republics and all but one have a “State Soviet.” However, as noted in the previous section on sovereignty, the significance here may be the retention by these republics of the word State, rather than the word Soviet.
4.4. Order of Presentation Collecting the names of the legislative and representative agencies in Federation subjects allowed consideration of the order in which the agencies of state power are presented in the different constitutions and charters. As noted earlier (Section 4), as
64 See supra text to note 58. 65 See the start of this section. JANE HENDERSON 141 a codified legal systemR ussia follows the general principle that topics are dealt with in an order which signifies their importance.T hus the positioning in the 1993 Constitution RF of the “Rights and Freedoms of Man and Citizen” immediately following the opening chapter of the “Foundations of the Constitutional System” is taken to indicate the contemporary importance of human rights (as indeed is made explicit in Article 2 of the Constitution).66 Also the placing of the chapter on the President (Chapter 4) ahead of those on the Federal Assembly (Chapter 5), the Government (Chapter 6) and Judicial Power and the Procuracy (Chapter 7 in its current redaction) emphasises the strength and importance of the President’s role as Head of State. It was not always like this. When a presidency was introduced in the USSR in 1990,67 and in the RSFSR in 1991,68 a new chapter was inserted into the relevant Constitution after the chapter on the legislative agencies (in both cases at that time the Congress of People’s Deputies and Supreme Soviet), although before the chapter on the government (Council of Ministers). In the USSR and the RSFSR, before the constitutional amendments to introduce a President, the structure of state had emphasised the supremacy of the legislative and representative agencies in the form of the Soviets. When adopting legislation to create the new presidential post, those legislative and representative agencies did not cede their pre-eminence. We can now compare the order of presentation in the current constitutions and charters of subjects of the Russian Federation. If the thesis about the significance of ordering is correct, we might see a marked emphasis on the legislatures. In 15 of the 22 republics, the chapter on the legislature comes before that of the executive and/ or republic Head.69 In 6 republics, the legislature is listed after the republic Head but before the government (similar to the federal Constitution).70 In only one, Kalmykiia, does the legislature come after both the republic Head and the government. All 9
66 “Man, his rights and freedoms are the highest value.” English translation in Butler 2018, at 422. 67 By USSR law of 14 March 1990 No. 1360-I “Об учреждении поста Президента СССР и внесении изменений и дополнений в Конституцию (Основной Закон) СССР” (Feb. 23, 2021), available at constitution.garant.ru/history/ussr-rsfsr/1977/zakony/185465/chapter/49599213504d6956cf550 3c571d6cc11/#block_200. The revised version of the USSR Constitution is available in Russian at http://constitution.garant.ru/history/ussr-rsfsr/1977/red_1977/5478736/. See also Henderson, supra note 35, at 53. 68 By Закон РСФСР от 24 мая 1991 г. «Об изменениях и дополнениях Конституции (Основного Зако- на) РСФСР» // СПС «КонсультантПлюс» [Law of the RSFSR of 24 May 1991. On Amendments and Addi- tions to the Constitution (Basic Law) of the RSFSR, SPS “ConsultantPlus”] (Feb. 23, 2021), available at http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=4940#03384702843197087. The revised version of the RSFSR Constitution is available in Russian at http://constitution.garant.ru/ history/ussr-rsfsr/1978/red_1978/5478728/. See also Henderson 2011, at 63. 69 Before executive (including head and government combined): Adygeia, Altai, Bashkortostan, Karelia, Komi, Tyva, Khakasiia; before Head: Dagestan, Crimea, Marii El, Sakha (Iakutiia), Northern Osetia- Alaniia, Tatarstan, Udmurt, Chechnia. 70 Buriatiia, Ingushetiia, Kabardino-Balkariia, Kalmykiia, Karachaevo-Cherkessiia, Mordoviia and Chuvashiia. Russian Law Journal Volume IX (2021) Issue 2 142 territories put the legislature first.71 7 regions put the legislature after the chapter on the Head but before the chapter on the executive (government).72 22 regions put the legislature before the executive,73 and 17 put it ahead of the regional Head and his administration.74 All three of the cities of national significance do likewise,75 as does the Jewish autonomous region and all four of the autonomous areas.76 Thus, in their current constitution or charter, 71 out of the 85 subjects of the Fede- ration – that is, 83.5 per cent – keep the order which was represented in the USSR and RSFSR Constitutions when the institution of a President was first created, rather than following the order of the 1993 Constitution RF, to which only 13 Federation subjects conform.
4.5. Other Remnants of the Soviet Past? In her attempt see what other Soviet legacies the author might find, she decided to take a different perspective to her topic. Having failed to unearth dramatic differences in the chapters on rights in the six republican constitutions with apparently anachronistic chapter headings that were her initial focus of research, and then having checked out the very few anomalous chapter titles in charters of the other Federation subjects, the author decided to approach her subject in a different way. She would assess the possibility of Soviet legacies in the constitutions and charters of the subject of the Russian Federation by first establishing what factors she judged to be characteristic of Soviet constitutions, so that she could then better explore whether any of those were present in the constitutions of the republics within Russia. Depending on the results, she might extend her search to the charters of the other Federation subjects.
4.5.1. Characteristics of a Soviet Constitution The author decided to identify characteristics of a Soviet Constitution by looking at the major changes which were evident in the post-Soviet 1993 Constitution of the Russian Federation, as compared to the 1978 RSFSR Constitution and/or the 1977 USSR Constitution.
71 Before executive: Altai, Kamchat, Krasnodar, Khabarov; before Head: Zabaikal, Krasnodar, Perm, Primorskii, Stavropol. 72 Belgorod, Vologda, Ivanovo, Leningrad, Nizhegorod, Novosibirsk and Samara. 73 amur, Astrakhan, Vladimir, Volgograd, Kaluga, Kemerovo, Kirov, Kursk, Lipetsk, Novgorod, Orenburg, Penza, Pskov, Rostov, Saratov, Sakhalin, Smolensk, Tambov, Tver, Tomsk, Tula, Cheliabinsk. 74 arkhangelsk, Briansk, Voronezh, Irkutsk, Kaliningrad, Kostroma, Kurgan, Magadan, Moscow region, Murmansk, Omsk, Orlovsk, Riazan, Sverdlovsk, Tiumen, Ulianovsk, Iaroslavl. 75 moscow and St. Petersburg put it before the executive, Sevastopol before the city Head and government. 76 nenets, Chukotskii, Iamalo-Nenetskii put it before the executive; Khanty-Mansiiskii–Iurga before the okrug Head. JANE HENDERSON 143
One hugely significant feature of the 1993 Constitution RF is that it declares in Article 15 that the Constitution has direct effect (priamoe deistvie; прямое действие). Soviet constitutions were not regarded as being directly applicable, with the result that mechanisms proposed in a constitution, such as the right of citizens to appeal to a court unlawful actions of officials (as set out in 1977U SSR Constitution Article 58) could not be brought into operation until and unless there was subsidiary legislation setting out the process.77 (This fitted with the principle of the time that everything not allowed was forbidden.) Another novel and significant characteristic of the 1993 Constitution RF is that it enshrines in Article 10 the principle of separation of legislative, executive and judicial power – na osnove razdeleniia na zakonodatel’nuiu, ispolnitel’nuiu i sudebnuiu: на основе разделения на законодательную, исполнительную и судебную – with the associated principle that agencies of these powers should be autonomous.78 The author therefore decided to see whether direct effect, separation of powers and autonomy were explicitly specified in republican constitutions.
4.5.2. Direct Effect All the current versions of constitutions of the republics within Russia claim that their constitution has direct effect.
4.5.3. Separation of Powers All the current versions of constitutions of the republics within Russia claim in their constitution that there is separation of powers, between the legislative, executive and judicial branches of state power. However, neither Ingushetiia nor Sakha (Iakutiia) say specifically, as do the other republics, that the branches of state power are autonomous. Even more surprising, the Republics of Ingushetiia (in Article 6) and Chuvashiia (in Article 3) simultaneously claim that there is unified state power edinoi( gosudarstvennoi vlasti; единой государственной власти), which was a Soviet principle. Although the author found in relation to the names of the legislatures that there was a significant difference between republics and some of the non-republic Federation subjects – in that no republics had Dumas whereas 28 of the other
77 i nitially by Закон СССР от 30 июня 1987 г. № 7287-XI «О порядке обжалования в суд неправомерных действий должностных лиц, ущемляющих права граждан» // СПС «КонсультантПлюс» [Law of the USSR No. 7287-XI of 30 June 1987. On the Procedure for Appealing to a Court Unlawful Actions of Officials Which Impinge upon the Rights of Citizens, SPS “ConsultantPlus”] (Feb. 23, 2021), available at http:// www.consultant.ru/cons/cgi/online.cgi?req=doc&base=ESU&n=44902#02525391758189075. English translation in Donald D. Barry, Administrative Justice: the Role of Soviet Courts in Controlling Administrative Acts in Soviet Administrative Law: Theory and Practice 80 (George Ginsburgs et al. eds., 1989). 78 “Статья 10: Государственная власть в Российской Федерации осуществляется на основе разделения на законодательную, исполнительную и судебную. Органы законодательной, исполнительной и судебной власти самостоятельны. [Article 10: State power in the Russian Federation shall be effectuated on the basis of separation into legislative, executive, and judicial. Agencies of legislative, executive, and judicial power shall be autonomous.]” English translation in Butler 2018, at 424. Russian Law Journal Volume IX (2021) Issue 2 144
Federation subjects did – she did not explore further whether direct effect and separation of powers were specifically mentioned in charters, because it seemed that, in this respect, the lead set in the 1993 Constitution RF was clearly being followed, as is appropriate given the provisions in its Article 15(1).79
4.6. Soviet Style – Lack of a Constitutional/Charter Court? Despite the protestations in all republican constitutions that they have direct effect and that there is separation of powers (even if a very small number still claim unity of state power), in practice it is hard to see how these characteristics can be said to pertain in republics that did not have a working republican constitutional court – that is, Kalmykiia, Karachaevo-Cherkesskaia, Crimea, Mordoviia, Udmurt Republic, Khakasiia, Chechnia (theoretically set up, but not active), Chuvashiia and, since January 2019, Tyva. In each of these, there has been no judicial body which can deal with separation of powers issues, that is, give a ruling on whether republican legislation, and/or the activities of the republican executive, are in breach of the republican constitution. This puts these particular republics in a very similar position to the USSR before the establishment in the spring of 1990 of the USSR Constitutional Supervision Committee, or the RSFSR before the establishment of the RSFSR Constitutional Court in 1991, of effectively having a so-called “Basic Law” which in fact was unenforceable. There has thus been a strong practical legacy of the Soviet past in the lack of judicial protection for inhabitants within this particular group of republics of their republican constitutional rights. The situation has been even worse in relation to the other 63 Federation subjects. There were active charter courts, enforcing the Federation subject’s charter, in only three of these: Kaliningrad and Sverdlovsk regions, and the federal city of Saint Petersburg. This suggests that even though the constitutions and charters say they uphold the principles of separation of powers and rule of law, for 70 of the 85 Federation subjects this has only been meaningless lip service, as there has been no effective judicial mechanism to check compliance with the Federation subject’s constitution or charter. This is a matter about which the author has written elsewhere, often in collaboration with Dr Marina Belykh of the Department of Constitutional Law of the Ural State Law University, as being a matter of serious concern.80 Unfortunately, in the view of the author, this situation has now got worse. One of the changes brought about by the 2020 amendments to the 1993 federal Constitution is a rewording of Article 118(3).81 The original version of this paragraph merely said that,
79 See supra text to note 13. 80 most recently in Henderson & Belykh 2018. 81 See for a summary Elizabeth Teague, Russia’s Constitutional Reforms of 2020, 5(3) Russian Pol. 301 (2020). JANE HENDERSON 145
The judicial system of the Russian Federation shall be established by the Constitution of the Russian Federation and by a federal constitutional law. The creation of extraordinary courts shall not be permitted.82
The amended version now specifically lists the bodies which comprise the judicial system of the Russian Federation:
the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, Federal courts of general jurisdictions, arbitrazh courts and justice-of-the-peace courts of subjects of the Russian Federation.83
The author’s initial fears that this is a closed list were confirmed by details of the consequential amendments to the Federal Constitutional Law on the Judicial System.84 As Kommersant reported,
The amendments provide for the liquidation of these courts before 1 Janu- ary 2023, prohibit them, from the date of entry into force of the law, from accep- ting new cases for proceedings, but retain the guarantees for their judges. [Popravki predusmatrivaiut likvidatsiiu etikh sudiv do 1 ianvaria 2023 goda, zapreshchaiut im so dnia vstupleniia zakona v silu prinimat’ novye dela k proizvodstvu, no sokhraniaiut za ikh sud’iami polozhennye po zakonu garantii; Поправки предусматривают ликвидацию этих судов до 1 января 2023 года, запрещают им со дня вступле- ния закона в силу принимать новые дела к производству, но сохраняют за их судьями положенные по закону гарантии].
Instead of courts, what the new amendments offer is the creation of “constitutional councils” under the legislative agencies of the subjects of the Federation. It may be argued that such councils, whilst welcome if they come to exist in all subjects of the Federation, cannot be as independent as courts. They will presumably not have the protection of federal Constitution Article 10, which mandates separation of powers. Returning to the theme of this paper, the author opines that, in her view, this retrograde step, to non-judicial consideration of what might otherwise be regarded as legal matters, is reminiscent of the Soviet period, when there was no forum for judicial examination of constitutional issues. Such lack of separation of powers seems to be a direct legacy of the approach taken during the Soviet socialist
82 Butler 2018, at 456. 83 maggs et al. 2020, at 1033. 84 Веретенникова К., Макутина М., Рожкова Е. Судебная система пошла на сокращение. Госдума приняла поправку об упразднении конституционных и уставных судов регионов // Коммерсантъ. 17 ноября 2020 г. [Ksenia Veretennikova et al., The Judicial System Has Gone Down. The State Duma Adopted an Amendment to Abolish the Constitutional and Charter Courts of the Regions, Коммерсантъ, 17 November 2020] (Feb. 23, 2021), available at https://www.kommersant.ru/doc/4575259. Russian Law Journal Volume IX (2021) Issue 2 146 era, when, for example, “only the legislator could give an authoritative interpretation of legislation.”85
Conclusion
Summing up the results of her investigations, the author’s current and somewhat tentative conclusion is that, ironically, her original concern that, on the basis of chapter headings in a few constitutions and charters, there might lurk within current Russia a Soviet approach to rights, proved to be unfounded; the substance of all those chapters was thoroughly modern. However, there do still appear to be some legacies of the Soviet past. A minority of Federation subjects – 10 out of 85 – may have been nostalgic in retaining a “Soviet” as their legislative and representative body, although they may have just been using the Russian word for Council. A rather stronger case might be made against Khakasiia for its Supreme Soviet (Verkhovnyi Sovet; Верховный Совет) and Orlovsk (and Kemerovo until 2019) with its Soviet of People’s Deputies (Sovet narodnykh deputatov; Совет народных депутатов), as these names are more obviously evocative of the Soviet past. There might also be a strong argument that the Soviet practice of giving precedence to the legislative and representative agency has been retained in an overwhelming majority of Federation subjects, if the order of exposition in their constituent document is to be taken as indicative. However, perhaps the feature most redolent of the Soviet past is the fact that the opportunities for the realisation of rights, and protection against abuse of legal power by the Federation subjects’ legislatures and executives, have been severely limited in most of Russia’s Federation subjects, and, after the end of 2022, will be limited in all of them. There is what could well be characterised as a Soviet-era approach to judicial accountability – that is, a distinct absence of it. This is the case because of the woeful absence in the vast majority of Federation subjects of a constitutional or charter court which could rule on such issues. Moreover, as noted, this situation has been made worse since the 2020 reforms to the federal Constitution, which have mandated the elimination of such courts. The author is thus led to postulate that there is an apparent legacy of the Soviet past in the constitutions and charters of the subjects of the Russian Federation. However, it is not, as she had first surmised, mainly in relation to the wording of those foundational laws. The author was initially looking at the vocabulary used, that is, the form of the constitutions and charters. She should rather have been considering their function, that is, their application and enforceability, and seeing shadows of the Soviet past in the problematic issue, going forward, of apparent lack of any opportunity to use those constitutions or charters as the basis for an action in court.
85 marina L. Lomovtseva & Jane Henderson, Constitutional Justice in Russia, 34(1) Rev. of Central and East Eur. L. 37, 60 (2009). JANE HENDERSON 147
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Information about the author
Jane Henderson (London, United Kingdom) – Affiliate, Dickson Poon School of Law, King’s College London; Formerly (Now Retired) Senior Lecturer (85 Waldegrave Rd., Teddington, Middlesex, TW11 8LA, United Kingdom; e-mail: [email protected]). Volume IX (2021) Issue 2
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