It All Went Splendidly for the President

The Constitutional Court of Ukraine (CCU) announced on Friday that it has declared unconstitutional the 2004 constitutional reform, and brought back to life the 1996 version of the Fundamental Law. Now the Verkhovna Rada will have to bring all of the laws passed over the past five years into conformity with the "old" constitution. The CCU decision has given rise to quite a few questions, in particular, regarding the terms of office of the parliament and president. Speaker Vladimir Litvin is sure that the deputies will have to adopt changes to the transitional provisions of the constitution that will extend the authority of the current Rada for a year and a half, and of the head of state for eight months.     

Law of the Russian Federation On "Charitable Activity and Charitable Organizations" Federal Law No. 135-FZ of August 11, 1995

Justices who disagree with the plans of the governing majority to review the provisions of the fundamental law and to repeal the constitutional reform of 2004 are leaving the Constitutional Court of Ukraine (CCU). Their letters of resignation will be considered tomorrow by the Congress of Judges of Ukraine. One of the four CCU justices who has decided to resign, Iarolsava Machuzhak, told Kommersant correspondent Aleksandr Sviridenko about the reasons for this decision and the current state of affairs inside the court.     

Thirty-Seven Murders According to a Skinhead

Yesterday the Constitutional Court of Ukraine (CCU) began public hearing in the case of the conformity to the constitution of Law No. 2222-IV, which set the constitutional reform[x of 2004 in motion. The CCU hearing, which is being broadcast live to the whole country for the first time in history, has demonstrated a unity of opinion of the parties: the representatives of the deputies, Verkhovna Rada, presidential administration (PA), and the government have stated that this law was adopted in violation of procedure six years ago. The Verkhovna Rada expects the court to issue its decision within a week.     

At the Procedural Crossroads

Decision No. 8-rp/2010 of the Constitutional Court of Ukraine (CCU) of March 11, 2010 (hereinafter, the Decision) rocked the legal community. In that decision, the sole body of constitutional jurisdiction gave an official interpretation of the terms "highest judicial body," "high judicial body," and "initiation and conduct of cassation review procedure" contained in Articles 125 and 129 of the constitution of Ukraine. With regard to the constitutional petition, the CCU held in particular that the constitutional status of the Supreme Court of Ukraine (SCU) does not permit this tribunal to conduct cassation review of the decisions of the high specialized courts, courts that exercise cassation review authority.     

Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

Reforming the United Kingdom Constitution: Law,Convention, Soft Law

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism.     

Duels,Real and Fancied

The discussion on "The Defense Counsel: Rights and Problems" has produced serious interest in the legal community. Today a prominent jurist, Mikhail Petrovich Maliarov, State Legal Counselor 1st Class, participates in the "LG Discussion Club." Maliarov is the author of many articles and the coauthor and editor of a number of law textbooks. He presently holds a responsible post in the USSR Procuracy.     

The Constitutional State and its Reform Requirements

In the first part, the author characterizes the fundamental contents (principles) of the constitutional state. In the second part, he describes the necessary reforms both at the level of the national constitutional state and at the global and humanity level. In the third part, he examines the methods and procedures of reform in the constitutional state, analysing: a) constitutional formation or complete revision; b) constitutional amendments or partial revision; c) parliamentary constitutional legislation; d) constitutional interpretation; e) government and non‐governmental “outlook” commissions. 1 Abstract by Giorgio Bongiovanni.
     

Resisting Multiple Narratives of Law in Transition Countries: Russia and Beyond

Burbank, Jane . 2004 . Russian Peasants Go to Court: Legal Culture in the Countryside, 1905–1917 . Bloomington, IN : Indiana University Press. Pp. xix + 374. $49.95 cloth. Feifer, George . 1964 . Justice in Moscow . New York : Simon and Schuster. Pp. 336 . $20.95 paper. Kaminskaya, Dina . 1982 . Final Judgment: My Life as a Soviet Defense Attorney . Trans. Michael Glenny. New York : Simon and Schuster. Pp. 364 . Out of print. Ledeneva, Alena V . 2013 . Can Russia Modernise? Sistema, Power Networks and Informal Governance . Cambridge : Cambridge University Press. Pp. xv + 332. $90.00 cloth; $32.99 paper. McDonald, Tracy . 2011 . Face to the Village: The Riazan Countryside under Soviet Rule, 1921–1930 . Toronto : University of Toronto Press. Pp. xvii + 422. $75.00 cloth. Politkovskaya, Anna . 2004 . Putin's Russia: Life in a Failing Democracy . Trans. Arch Tait. London : Harvill Press. Pp. 304 . $17.00 paper. Popova, Maria . 2012 . Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine . Cambridge : Cambridge University Press. Pp. xii + 197. $103.00 cloth; $29.99 paper. Romanova, Ol'ga . 2010 . Butyrka . Moscow : Izdatel'stvo Astrel'. Pp. 316 . 240 rubles. The literature on the role of law in countries with so‐called hybrid regimes that are stuck somewhere between democracy and authoritarianism tends to dwell on the politicization of law and the courts. This has the effect of discounting the importance of the vast majority of cases that are decided in accord with the law. Taking Russia as a case study, this essay reviews a cross‐section of the literature on its courts in order to document this tendency and explore why alternative narratives of law have failed to gain traction: Burbank's Russian Peasants Go to Court ( 2004 ); Feifer's Justice in Moscow ( 1964 ); Kaminskaya's Final Judgment ( 1982 ); Ledeneva's Can Russia Modernise? ( 2013 ); McDonald's Face to the Village ( 2011 ); Politkovskaya's Putin's Russia ( 2004 ); Popova's Politicized Justice in Emerging Democracies ( 2012 ); and Romanova's Butyrka ( 2010 ).     

A Faction of One: Revisiting Madison's Notes on the Constitutional Convention

This essay on Madison's Hand: Revising the Constitutional Convention, Mary Bilder's revisionist account (2016) of James Madison's Notes on the Constitutional Convention argues that her central thesis, which is that Madison substantially revised the Notes long after the Convention adjourned, is groundbreaking but will have no effect on constitutional law. Madison's Hand is groundbreaking because the book yields many powerful insights into the deliberations of the Convention and into the evolution of Madison's thought. Nevertheless, constitutional practice in the Supreme Court and among elite lawyers is so divorced from the Notes that even a dramatic shift in their interpretation will not disturb the evolution of judicial doctrine applying the text written in 1787.     

Law school accreditation in the New Independent States of the former Soviet Union: what steps for the future?

Legal education reform has recently emerged as a key component in the rule of law promotion in the former Soviet Union republics,1 1. See Jane M. Picker & Sidney Picker, Jr, Educating Russia's future lawyers—any role for the United States? (2000) 33 Vanderbilt Journal of Transnational Law 17, 18–19, arguing that the core building block of the rule of law rests on legal education. See John M. Burman, The role of clinical legal education in developing the rule of law in Russia (2002) Wyoming Law Review at 90, 101, stating that reform of the legal education is the most effective way of creating a culture of law. See Peter J. Sahlas & Carl Chastenay, Russian legal education: post-communist stagnation or revival? (1998) 48 Journal of Legal Education 194 at 194, arguing that “a system of legal education can do more than teach the society's rules to successive generations: it can inspire values of justice and promote social progress”. See also Mark Dietrich, Three foundations of the rule of law: education, advocacy and judicial reform, in: Law in Transition (London, EBRD, Autumn 2002), at p. 57, available at: http://www.ebrd.com/ pubs/law/lit/english/aut02.pdf. The author points out that reform of legal education is the single most important reform to be undertaken in the NIS region. If law students are not taught how to think critically, question authority and be guided by the ethical values of the profession while in law school, it is difficult to expect that they will become honest advocates, judges or prosecutors in the future. View all notes now sovereign and independent states collectively known, for the purpose of this paper, as the New Independent States (NIS). Scholarly articles and international forums2 2. See Europe and Central Asia Division of the Legal Department, World Bank, Selected Issues (2001) Challenges and Strategies. The World Bank Forum on Legal and Judicial Reform in Eastern Europe and the Former Soviet Union 33; see also Dietrich, op. cit., at 58. View all notes suggest that legal education reform could be advanced by developing and implementing accreditation procedures for law schools, updating law school curricula, establishing transparent and rigorous grading standards, and retraining the law faculty. This paper discusses just one of these measures, namely the development and implementation of quality evaluation and accreditation procedures for law schools in the NIS region. In order to explore this issue in detail, the paper has been structured into six parts.

?Part I provides a brief overview of legal education in the Soviet Union, thus placing the issues tackled in this paper into a historical perspective. Part II describes the main changes occurring in the higher education system in general and legal education in particular in the NIS region after 1991, emphasising new challenges that privatisation of the higher education sector posed to the quality of legal education, thus triggering an urgent need for quality-assurance and accreditation mechanisms. The currently existent NIS practices of licensing, evaluation and accreditation of academic institutions, including law faculties within multi-disciplinary academic institutions, as well as separate law schools, are described in Part III. Parts IV and V adopt a comparative approach to accreditation by providing an overview of accreditation procedures in the United States, and the recent initiative and trends in quality evaluation and accreditation in Western Europe. Drawing upon the information provided in Parts I–V, Part VI offers concrete suggestions and recommendations for improving the implementation of accreditation procedures in the NIS region. The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of either the American Bar Association or the Central European and Eurasian Law Initiative. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the policy of the ABA. Nothing contained in this report is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This report is intended for educational and informational purposes only. Research performed on Westlaw country of West Group. View all notes     

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5‐3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Back to the Future

They thought this out very well, having in mind the television broadcast of the Constitutional Court session on TV Channel One. Ukraine has not seen anything like this before. The general public, as a rule, has been able to see only the final portion: a judge in his robes pronouncing a verdict—a decision that is not subject to appeal. Today everyone who wants to can become familiar with the work in the constitutional kitchen. Total access, as they say. Well, almost total, since the confidentiality of the meeting room is still preserved.     

The role of the Justice Select Committee

Emotion is ... ubiquitous, although often operating less obviously and visibly, underground. (Layder, 2004)

Them first three years ... I wasn't coping very well with my emotions.

(Prisoner)     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

Delegated and Implementing Rule Making: Proceduralisation and Constitutional Design

The reform of non‐legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption.     

Dissenting Opinion of Justice of the Constitutional Court of Ukraine V. M. Kampo Regarding the Decision of the Constitutional Court of Ukraine No. 14-rp of June 10, 2009 (Case of Canceling Preterm Elections in Ternopil' Oblast)

There is no question that the 2004 constitutional reform was not completed. Even the method of conducting it created a regime of semilegitimacy in the country. Obviously, the reform should have been continued, expanding the powers of local self-government and reducing the functions of the local state administrations. But this did not happen, primarily because the initiators of the constitutional reform, no matter who it was—Yushchenko, Tymoshenko, or the Party of Regions—were trying to carry out the reform not in order to increase the effectiveness of the governance mechanism, but to obtain the maximum preferences of power for their own dear selves.     

Yushchenko Confusingly Approved of the Repeal of the Constitutional Reform as No One Else Did

"The changes to the Fundamental Law adopted in 2004 misbalanced state power and laid many political ‘land mines’ in the path of reform. I felt it every day when I was president of Ukraine, and all my initiatives came to ruin due to the irresponsibility and ineffectiveness of the authorities."     

The use of referendums in Ireland: an analysis

The referendum is a phenomenon which is becoming increasingly normalised in the constitutional practice of many countries. Ireland is an EU member state with particularly extensive experience of the referendum as a decision-making tool. To date, it has held 39 referendums on a variety of issues – ranking it among the top four states in Western Europe in this regard.

This article seeks to review the emergence of referendums in Ireland as a decision-making instrument and to ask what constitutional, legal or institutional factors have led to referendums enjoying such comparatively extensive use there. It seeks to examine which political issues have formed the subject of referendums in Ireland, and to investigate what kinds of issues have succeeded in gaining electoral approval and what kinds have not. The extent of electoral participation in (and thus representativity of) Irish referendums is also scrutinised, and factors affecting participation rates examined.