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or THE EURO-ASIA Г1 2018. Is. 1
LAW COMQRESS
Информация для цитирования:
Саликов М.С., Кузнецова С.С., Мочалов А.Н. ПРОБЛЕМЫ СТАБИЛЬНОСТИ КОНСТИТУЦИОННОГО СТРОЯ В ЕВРАЗИЙСКОМ РЕГИОНЕ // Herald of The Euro-Asian Law Congress. 2018. № 1. С. 17-26.
Salikov M., Kuznetsova S., Mochalov A. THE PROBLEMS OF CONSTITUTIONAL ORDER STABILITY IN THE EURO-ASIAN REGION. Herald of The Euro-Asian Law Congress. 2018. Is. 1. Pp. 17-26.
УДК 342
BISAC LAW 018000 LAW/ Constitutional law
ПРОБЛЕМЫ СТАБИЛЬНОСТИ КОНСТИТУЦИОННОГО СТРОЯ В ЕВРАЗИЙСКОМ РЕГИОНЕ
МАРАТ САБИРЬЯНОВИЧ САЛИКОВ, Уральский государственный юридический университет (Екатеринбург, Россия)
СВЕТЛАНА СЕРГЕЕВНА КУЗНЕЦОВА, Уральский государственный юридический университет (Екатеринбург, Россия)
АРТУР НИКОЛАЕВИЧ МОЧАЛОВ, Уральский государственный юридический университет (Екатеринбург, Россия)
Введение: Проблемы стабильности конституционного строя имеют как практическое, так и теоретическое значение во всех без исключения государствах. В настоящей статье рассматриваются вопросы стабильности конституционного строя в контексте социальных изменений.
Методы: В ходе исследования авторы применяют специальные методы юридического исследования. В частности, широко использован сравнительно-правовой метод, а также метод case-study.
Анализ: В первой части статьи авторы анализируют недавние изменения в российском конституционном законодательстве, касающиеся избирательных систем и информационных технологий. В частности, ими критикуется так называемый Закон Яровой. С точки зрения авторов, законодательство, не отвечающее запросам общества, подрывает конституционную стабильность. Частые изменения Конституции и конституционного (в особенности избирательного) законодательства также не способствуют стабильности. Во второй части статьи авторы рассматривают конституционную стабильность сквозь призму межэтнических отношений. Анализируются некоторые кейсы, причем связанные не только со странами Евразии, но и с Нигерией и Эфиопией.
Результаты: Авторы приходят к выводу, что стабильный конституционный строй - не значит неподвижный. Должен присутствовать баланс между социальными изменениями, с одной стороны, и сохранением базовых ценностей и институтов - с другой. Конституционный строй должен быть достаточно жестким, чтобы проводимые социальные изменения не подрывали доверие людей и не искажали цели, ценности и принципы, провозглашенные Основным законом государства.
Ключевые слова: конституция, конституционное право, стабильность, конституционный строй, социальные изменения, конституционные ценности, межэтнические отношения.
UDC 342
BISAC LAW 018000 LAW/ Constitutional law
THE PROBLEMS OF CONSTITUTIONAL ORDER STABILITY IN THE EURO-ASIAN REGION
MARAT S. SALIKOV, Ural State Law University (Yekaterinburg, Russia)
SVETLANA S. KUZNETSOVA, Ural State Law University (Yekaterinburg, Russia)
ARTUR N. MOCHALOV, Ural State Law University (Yekaterinburg, Russia)
Introduction: Problems of stability of constitutional order have both theoretical and practical dimensions and touch all states. In the article, constitutional stability in the context of social changes is discussed.
Methods: Doing the analysis, the authors use special methodology of legal research. In particular, a comparative-law is broadly applied as well as case studies.
Analysis: In the first part of the article the authors discuss recent developments in the Russian constitutional legislation concerning electoral systems and informational technologies. In particular, the «Yarovaya Act» is criticized. In the authors' opinion, legislation that does not meet social demands undermines constitutional stability. Frequent amendments of the Constitution and constitutional legislation (especially electoral one) do not contribute to constitutional stability as well. In the second part the authors analyze constitutional stability through the prism of inter-ethnic relations. They discuss some cases from Indian, Nigerian and Ethiopian experience.
Results: The authors make a conclusion that stable constitutional order does not mean inflexible order. There should be a balance between social changes and maintenance of basic values and institutions. The constitutional order should be rigid enough for social changes not to be able to undermine the constitutional basis and trust of citizens to values, aims and principles proclaimed by the main law of the country.
Keywords: constitution, constitutional law, stability, constitutional order, social changes, constitutional values, inter-ethnic relations.
INTRODUCTION
MATERIALS AND METHODS
Speaking about constitutional order stability we should not equate it with mere immutability of the constitution as a main law of a state. Constitutional order is a notion which encompasses a wide range of state law phenomena. It includes not only the constitution as a set of fundamental legal principles, values and norms, but also the whole palette of institutes existing in a particular state and defining its constitutional design.
Constitutional order is not something predetermined and established once and for all. Being a system of state and social institutions and relations it is constantly changing. Constitutional order reacts to the varying external and internal factors: some institutes appear, others die, some of them transform adapting to the changed social environment. This process is continuous.
Problematic issues of maintaining constitutional order can be discussed in respect to various fields of constitutional-law regulation. In the first part of the paper, we will discuss modern Russian constitutional legislation in the context of social changes and development of information technologies. The second part of the article is devoted to comparative-law study of modern problems of inter-ethnic relations in federations.
Development of information technologies considerably influenced the system of constitutional relations in almost every country. New ways of information transmition, new means of communication and means of processing data have significantly changed the paradigm of person-state relations and transformed the mechanism of such human rights exercise and protection as the right to information, freedom of expression, and right to privacy. The approaches to these rights limitations have also changed.
However the mobility of constitutional order does not evidence its instability per se. As it has already been mentioned constitutional order is not a «congealed» artifact. Being a part of social reality it is changing along with it. At the same time the constitutional order also influences the dynamics of social changes setting legal frames for development, declaring its political aims, providing succession of the institutes and predictability of legislation. Thus, constitutional order simultaneously constitutes the result and guarantee the balance between legal traditions of a society on the one hand and its development and modernization on the other hand. Constitutional order is stable when this balance is fulfilled and society develops in the framework of existing legal traditions and values, but these traditions being a deterrent do not create excessive limitations thus allowing to implement new ideas and form new institutions in the society if they do not expressly contradict the existing constitutional aims, values and principles.
When existing legal traditions oppose to innovations and prevail over development we can characterize constitutional system as a conservative one. The majority of traditional Islamic countries (Saudi Arabia, Oman, Iran, Pakistan and others), orthodox socialistic countries (Cuba, North Korea, Vietnam, Laos and to less extent China) and some other countries, for example, Bhutan have such type of constitutional system. Traditions there serve as a serious restriction of social changes so the constitutional order is much less mobile (although we cannot call it totally immobile). In conservative constitutional systems new ideas that penetrate into society and do not fit the constitutional order may accumulate and form alternative values in the society which will oppose to the officially accepted principles of constitutional order of state. This may lead to the increasing protests and social tension which in its turn destabilizes the constitutional order.
Socialist countries of 1980-1990 can illustrate this example. After the fall of the «Iron Curtain» the so called «socialist camp» countries were flooded with ideas and concepts which were mostly produced by the Eastern Europe and North American liberal thought of the second part of 20th century. Having overwhelmed the majority of intellectual elites and students in these countries, these ideas however did not lead to the changes of the formal institutes of the constitutional order which were governed by the socialist political traditions. At the same time the values of liberalism although not percepted by the socialist constitutional order gradually seized the public consciousness. In a particular moment a gap between official values of the constitutional order of these states and new values shared by the majority of population and viewed as an
alternative to the traditional constitutional order has appeared. This gap has led to renown consequences: constitutional order of the majority of socialist countries could not handle the pressure of «alien» ideas, principles and values, which led to its crash.
But another extreme, when constitutional order initially does not perform its functions of the deterrent for social changes, is equally dangerous. In a state that is «permanently reformed» the trust of society to constitutional institutions can weaken so much that constitution will lose its authority and will not be percepted as a supreme act of higher legal force. Political elite can change existing constitutional institutes as often and unpredictable as the corporate interests require under the influence of new political trends (or vice versa fairs connected to them) or based on conjunctive ideas. Constitutional order in such case becomes an object of political manipulations, the space for the group interests' implementation. Such condition of constitutional order is characterized with «pendulum» dynamics: soon after the introduction of a new institute follows its termination and rollback follows the change. Constitutional reforms in this case can look inconsistent and even chaotic. In fact they are just situational. Of course, we cannot call such constitutional order stable.
In Russia, by the way, new legislative acts that significantly change constitutional relations are not always preconditioned by the constitutional aims. Let's view as an example the return to the majority electoral system for the election of the half of State Duma. We generally welcomed this novelty in the Euro-Asian Legal Congress 2016 expert group report. However, mixed electoral system is known to be analogous to the one introduced in 2014 and was used for the formation of State Duma earlier, but has been consequently changed to proportional system where all the deputies are elected under the party list. The reasonable question is what was so wrong with the mixed system if it was denied? And what was wrong with the proportional system if it was again substituted with the mixed one (which appeared to be not so wrong)? Were those «pendulum» changes preconditioned by the objective necessity? Are they directed at consecutive implementation of the principles enshrined in the Constitution of Russia?
We have never met any persuasive arguments of legal and not mere political nature that would evidence the necessity of the refusal of the mixed electoral system in favor if the proportional one first and of the refusal of the proportional system in favor of the mixed one second. We can hardly explain which constitutional purposes in particular those changes have pursued. A. Bezrukov also draws our attention to the fact that «constitutional reforms conducted nowadays
do not always correspond to the spirit and letter of the Russian Constitution and to some extent undermine constitutional stability which is a crucial condition to provide constitutional legal order» [Bezrukov 2014: 4].
Some recent constitutional novelties are also doubtful judging from the balance of constitutional values and their correspondence to the purposes of social development. For example, the so called «Yaro-vaya Act» (Federal law of 6 July 2016 No. 374-FZ "On amendment of Federal law «On counteraction to ter-rorism» and several legislative act of the Russian Federation to provide additional measures to counteract terrorism and provide public safety), which draft was introduced to State Duma (as the explanatory note states) to «provide additional protection of citizens and society from the threat of terrorism», significantly limits human right and freedom in the information sphere including the right to privacy, to access to information, religious freedoms. Are these restrictions proportionate to the aim declared? How does the aim of this Federal law correlate to the aims of constitutional development such as creating conditions for wellbeing and free development of every human being (Article 7 of the Russian Constitution)? Don't they undermine the supreme value proclaimed by the Constitution which is a man, his rights and fundamental freedoms? There is no open and reliable information about the influence of the «Yarovaya Act» to counteracting the threat of terrorism meanwhile mass media sometimes reports about strange judicial decisions based on this Act.
Similar situation occurs nowadays in relation to initiatives of counteractions to so called «death groups» in social networks. According to statistics of the Ministry of Internal Affairs of Russia only one percent of child suicides is committed under the influence of the information spread by those groups. Of course, even several children deaths are enough to undertake the most decisive measures to such internet groups administrators. However those proposals that were announced on the wave of the recent campaign raise similar doubts as the «death groups»: from the access to the Internet provided passport submission to the ban to use social networks for children under 14.
The abovementioned legal «innovations» based on the presumption of bad faith of both the administrators of networks and the Internet users (otherwise why they are distrusted?) seem to contradict both the supreme value of man, his rights and freedoms and the state's obligation to admit and protect those rights and the constitutional aims of the country's development. Besides, the proposed absolute measures on prohibition and limitation are obviously disproportionate to the task for which they were designed and will clearly re-
strict the rights and freedoms of too many people and legal entities.
These examples evidence instability of the constitutional order in Russia: its dynamics is not always predictable and clear and the changes are often situatio-nal. The situation is complicated with the amendments that are periodically introduces to the very Constitution. We agree on the position that the stability of the constitutional order cannot be equated with the stability of the Fundamental Law, however the amendments to this document require even harder test of compliance to the principles, values and aims set by this document. Frequent amendments to the Constitution can also adversely impact on the stability of the constitutional order [Yusubov 2014: 15]. Professor Knyazev also stresses this fact: «Too much enthusiasm about the changes of constitution together with intensiveness of these changes leads to the danger to discredit the constitution which in its turn can lead to the total denial of constitutional values or at least to weakening of the principles and institutes of the constitutionalism» [Knyazev 2015: 10].
The world's social and political trends analyses leads to a conclusion that among the main threats to stability of the constitutional order in different countries are inter-ethnic and inter-confessional tensions. Notorious experience of Yugoslavia definitely illustrates that ineffective and untimely application of the constitutional, social and political instruments to solve internal ethnic conflicts can lead to total elimination of state.
New outbreaks of ethnic clashes from time to time appear at different territories of Nigeria, India, South Sudan, South Africa and some other countries of Africa and Middle East which lead to enormous victims among the local population and create a threat for both national security of those countries and security of the states where «religious» and «ethnic» refugees are flooding.
Africa and Middle East are very vulnerable for ethnic and religious conflicts since every country located there hosts representatives of dozens and sometimes even hundreds of different tribes and religious groups. As Christophe Van der Beken fairly mentions «the great variety is primarily preconditioned by the nature of the African countries. The majority of those countries were created as a result of European imperialistic states decisions. Existing ethnic links were broken by the borders of new states and ethnic groups that used to live separately became the citizens of one states» [Van der Beken 2012: 2].
Having won the independence fight, new African states aimed to develop their own statehood. Multicul-turalism is a poor basis for the county's development
so many countries such as Sudan, the Central African Republic, Ruanda have chosen the development vector that was offered them by the colonizers which was creation of a homogenous nation.
While choosing the policy of demographic multicul-turalism denial, the newly established independent African states have obviously failed to take into account the fact that at that moment the theory of united nation blended the homogenous cultural, linguistic and religious composition of such countries as Great Britain, France, Portugal quite harmoniously, however the tribal composition of the African states did not allow to apply this theory. The attempts of the statehood development based on the leading role of this or that national group has led to the factual genocide of ethnic and religious minorities on the territory of the whole continent.
Having realized the futility of the «one state - one nation» idea, India, Nigeria, South Africa, Ethiopia have constitutionally proclaimed multiculturalism as one of the leading principles of state organization, which led to the principled review of the state policy including the political and territorial organization of the states. Striving to provide the stable future of the country each multicultural state uses its own set of constitutional tools for solving domestic ethnic conflicts. Let's view the mechanisms of providing stability of the constitutional order in the conditions of multiculturalism and religious pluralism in such countries as India, Nigeria and South Africa as an example.
India is a federative state comprising 29 states and 6 union territories. The federation applies political and territorial reforms as the main instrument of the ethnic and religious conflicts solution since its creation as an independent state. Political and territorial organization of the federation reflected in the first version of the Indian Constitution was built taking into account «economic viability, managerial efficiency and successful implementation of the federal plans as important factors in states reorganization» [Narang 2010: 21]. In the beginning of 1960s the proponents of the linguistic basis for the country's territorial organization became more active: tamil, telugu, gujarati, marathi native speakers required to establish monolinguistic states. Recognizing the fragility of the newly created state Jawaharlal Nehru decided on the necessity of concessions and entitlement of major linguistic groups to establish their own states. Thus, in 1952 the state Andhra Pradesh with telugu language was established and in 1956 the state borders in the whole country were reviewed based on the linguistic principle. We should mention that India wisely decided to establish quite little linguistic states which would not be able to require secession due to their weak economies.
The entire history of India as federation saw only three major territorial reforms. The first stage in 1956 was based on the linguistic principle, the second stage focus on reorganization of one of the biggest Indian states Assam and Punjab. The reform was based on the religious principle (the Nagaland state) and also ethnic one (Arunachal Pradesh, Meghalaya, Mizoram) [Suan Hausing 2014]. At the third stage of the reform (starting from 2000) the economic factor played the leading role which was preconditioned by the desire to «divide» economic benefits and the opposing camps within the border of one state.
The last territorial reform in India was introduced in 2014 due to the Telangana state formation. The Andhra Pradesh state that firstly included the state Telangana was a monoliguistic state, therefore the fight for the self-determination of a new political and territorial unit had another basis. In this particular case we should speak about cultural tensions among the population which speaks one language but has different historical roots. Telangana (previously Hyderabad) was united into a multilanguage state of Andhra Pradesh with telugu speaking population of the Madras province in 1952. While developing the project of political and territorial reorganization of Madras, the Indian Council tried to predict all possible tensions between the population of Hyderabad and Madras, thus the Gentlemen Agreement was developed. This Agreement was aimed at rights and interests protection of the less educated population of Hyderabad and also at providing equal access to the public service to all citizens of the new state. However this act did not allow to avoid factual discrimination with respect to the Hyderabad population: telugu speaking population of Madras gradually dislodged the latter from the public service and formed negative prejudices about telan-gans among the society. Meanwhile the telangans percepted the economic success of Andhra Pradesh as their contribution since the state economic centre Hyderabad used to be a part of the rajaship and not of Madras province. This conflict was rather long, the parties tried to work out ethnic and cultural grounds for their positions. For example, the telangans developed a theory of «Telangana talli» (the mother of Telangan) and the proponents of state unity (representatives of Madras) offered to worship the idea of «Telugu talli» (the mother of all telugu speaking population) and actively advocated for the unity of culture and history of the whole state population. The commissions on state reorganization gathered many times, they tried to find out linguistic and religious factors of the state reorganization, but every time the Commission came to the conclusion that the most reasonable solution is to save
the unity of state while "the division is recommended only if it is inevitable and only if the decision on separation is reached by peaceful means with all three state regions participating" [Report 2010]. However in 2014 the centre conceded to the Andhra Pradesh population and adopted The Andhra Pradesh Reorganisation Act of 2014, which allowed stopping the conflict and providing the stability of the Indian constitutional order.
Nowadays the trend to splitting up the state territories remains which, on the one hand, allows solving the appearing ethnic and religious problems, but on the other hand, practically inflates the status of the federation unit. The territorial reorganization of the state has lost its ethnic and linguistic principle and became the means to relief the tensions in different districts of the country. Meanwhile it is obvious that this measure can provide only temporary patience and some Indian territories do still have complicated ethnic and religious situation. For example, in Assam state the tension between indigenous Hindu and Muslim migrants has been remaining for more than 50 years. During this period dozens of thousands people fell victims of the terror from both sides. The Asian Centre for Human Rights reports that the Assam conflicts including the Bodos attacks of the Muslims villages in 2014 has led to the migration of more than 300 000 people which is the highest index in the world. The Kuki and Naga tribes demanding the changes of the state border are facing the same problems within the borders of multi-language state Manipur. In Jammu and Kashmir state the Hindu minority is a victim of the Muslim majority attacks and is forced to leave the territory of its traditional living.
Having become independent in 1960, Nigeria primarily faced the problem of regionalization: the country was divided into three ethnic regions of Igbo, Yoruba, Hausa and Fulani. Setting three major ethnic regions meant political and further military confrontation of major ethnic groups while ethnic minority were out of political fight and allocation of economic benefits. Within further 20 years following the independence of Nigeria the country saw several military coups and a civil war which were preconditioned by the ethnic groups fight for state power and economic benefits. Nigeria tried to depart from the ethnic principle in political and territorial country organization and in 1967 proclaimed «the universal federative principles, geographic adjacency, management convenience and new states economic viability» [Davies, Danmole, Taiwo 1995: 18-19] to be the basis of federative division of the country, however this decision has led to one of the most bloody civil wars in the 20th century. Therefore, for Nigeria the ethnic principle application for country's territorial orga-
nization is justified and necessary to provide stability of the constitutional order. At the same time it is not enough to solve the internal state conflicts which the current «balkanization» of state confirms.
To exclude the ethnic element in organization of government in 1979 new Constitution of Nigeria proclaimed the «federal» character of political parties which presuppose the requirement for the party to have representation in the majority of states in the country. This measure appeared to be quite effective, «the analyses of the party system formation and the results of the 1979, 1983 and 1993 elections showed gradual departure from the regional and ethnic principle in power distribution» [Lergo 2011: 92]. In 1999 Constitution the «federative» principle served the basis for the majority of governmental institutions in Nigeria. For example, the federal executive bodies' composition should reflect the federative nature of Nigeria and provide equal opportunities for states to participate in executive branch formation. Thus, the federal bodies' formation should allow the representatives of all states who are linked to the states by birth to enter the executive bodies.
At first sight this approach should provide the equality of all ethnic groups living in Nigeria on the one hand and on the other hand the principle of «federa-tive nature» just worsen the gap between the ethnic groups and heats the national self-determination of ethnic minorities that view the fight for their own state as the only was to get the opportunity to participate in the government and distribution of economic benefits. The problem of the «federative nature» principle implementation in Nigeria is directly connected to the economic underdevelopment of the country which urges the solution «if the country really aims at unity and diversity» [Olajide 2016: 202].
The regionalization trend in Nigeria and India within last 20 years just confirms that constitutional stability in multicultural states is preconditioned by not only guarantees of cultural and religious rights of ethnic groups but also by ensuring economic stability for the whole population.
The South African Republic is the most stable African state from the ethnic and religious view points: there are no political forces that claim for political and territorial autonomy of some ethnic groups. There are several reasons that allow South Africa to successfully keep the peace in society. Firstly, the undoubted advantage of this state is the spirit of unity among the Negro race population regardless of their tribal or ethnic origin which formed due to long-term fight with apartheid regime. Secondly, the South African Republic absolutely different compared to Nigeria or India ap-
proach to recognize the national and religious peculiarities of the population: declaring the principle of «unity in diversity» in Constitution's preamble the state on the one hand admits religious and cultural heterogeneity of its demographic composition and on the other hand does not admit national diversity and does not use the principle of ethnic representation in the formation of different state institutions.
Article 6 of the South African Constitution proclaims 11 languages to be official languages of the state, this allows to overwhelm 98 % of the population. Some of the official languages are used by a little bit more than 2 % of the state population (the 2011 census results show that such languages as ndbele, venda and svati are used by 2,1 %, 2,4 % and 2,5 % of population respectively). Meanwhile pursuant to Article 6(3) of the Constitution the governmental bodies of South Africa and the governmental bodies of its provinces are obliged to use at least two official languages based on its applicability, regional peculiarities, demands and preferences of the population and local government bodies can chose just one language as the official one. «In South Africa where the majority of ethnic groups are territorially concentrated the regional organization based on the linguistic principle provides the development of regional languages and encourages the development of local ethnic communities» [Tesfaye 2010: 104].
Chapter 2 of the South African Constitution «Bill of rights» guarantees protection of the population from «unfair» discrimination including discrimination based on ethnic or religious grounds. Articles 18 (freedom of association), 30 (language and culture) and 31 (cultural, religious and linguistic communities) of the Constitution altogether entitles the citizens of the South African Republic to establish cultural, religious and linguistic communities which actually constitute national and cultural autonomies and religious organizations and represent this or that ethnic group at the territory of the state. Each of three types of communities operates via specially created organs: associations and the community council.
To provide efficiency of the community institutions the South African Republic established «state institution supporting constitutional democracy». The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities plays a special role among them. According to Article 185 of the South African Republic Constitution the Commission was established to promote respect for the rights of cultural, religious and linguistic communities and to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious
and linguistic communities, on the basis of equality, non-discrimination and free association. In 2002 the Act governing the formation and competence of the Commission was adopted. This Act stipulates that the Commission is established on the basis of the major representation of cultural, linguistic and religious communities principle following the balance of equal gender representation and sets forth the following key functions and powers of the Commission:
educational and enlightening function: to promote awareness of the youth about the role of cultural, linguistic and religious communities and their rights, to introduce programs to encourage respect and protection of communities rights;
advisory function: to develop recommendations regarding legislation on the matters that concern or may concern the communities and strategies to provide participation of the communities in state development;
the function of scientific research: research and monitor the matters related to the exercise and protection of cultural, linguistic and religious communities rights, reveal the problems of the communities and lobby their interests;
the monitoring function: to create and conduct the databases of cultural, linguistic and religious organizations, institutions and experts on the communities, the admit the communities councils.
We would like to mention that the analyses of the South African Republic Constitution and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act draws to the conclusion that the South African Republic while following the idea of the nation unity does not allow to set any autonomies or organizations that would represent the interests of particular ethnic or national groups. Moreover, the legislation of the South African Republic does not apply the notion of ethnic or religious minorities and the South African Republic Constitution mentions ethnic diversity only once in the context of ensuring the non-discrimination in the society. Therefore, the state creates the conditions to support viability of the multiculturalism concept and religious diversity of one nation and not the idea of multiple different national groups' coexistence within the borders of one state. Nowadays this policy proves to be highly effective and affords to create social confidence of possibility for the population to realize real opportunities to exercise and protect their cultural, linguistic and religious rights.
Any state is interested in the protection of its constitutional order. To provide such protection it works out its own mechanisms and tools including the legal ones.
Nowadays when the question of state sovereignty is sharpening the constitutional order per se becomes the value since its stability provides the very existence of an independent state and the guarantees of human rights and fundamental freedoms.
RESULTS
The analysis shows that stable constitutional order should be flexible enough to absorb new ideas and institutes, which harmonize the values of a particular society, set forth in the country's constitution, and adapt to the changing environment. At the same time it should be rigid enough for social changes not to be able to undermine the constitutional basis and trust of citizens to values, aims and principles proclaimed by the main law of the country.
There is no single formula to establish such a balance. Every state and society will have its own balance. Moreover, in one and the same state the balance between rigid and flexible constitutional order, legal traditions and legal modernization can change with time depending on historical conditions and social context.
DISCUSSION
The constitutional model of any state can be considered as a model including stable «core» and dynamic «periphery». The «core» consists of values, aims and principles established by the very constitution (in Russia it is referred to as «the basics of constitutional order»). The «periphery» includes all the variety of existing constitutional institutes. The «periphery» can also be divided into several levels: legislative (which covers the whole system of constitutional regulations), implementation (which encompasses all constitutional legal relations where subjects of law exercise their rights and freedoms and fulfill obligations), application, communicative et cetera.
It is the «core» of constitutional order that is designed to provide stability of constitutional order in its entirety. Constitution of the state carries this «core» which is constitution's exclusive function. Professor S. Knyazev has mentioned: «The value of constitution is mostly in setting the most general (universal) principles, rules and procedures, that create constitutional ideology of relations between person, society and the state... Constitutional principles and norms can be implemented only in a long-term evolutionary way which is hardly possible if the constitution is fragile. The main idea of the fundamental law is to provide safety for substantive (basic, core) constitutional principles, aims, values, institutes and procedures. Constitution
loses its true meaning without that feature at least in the interpretation that constitutes a landmark of contemporary constitutionalism» [Knyazev 2015: 7].
The very constitutional changes at the same time do not deprive the constitutional order of its stability if they are consistent and correspond to the constitutional values, aims and principles. The example of countries with long constitutional history demonstrates this. For example, the constitutional order of the USA has significantly evolved over the two centuries and the contemporary American constitutionalism differs from the one of the 18-19th century greatly. At the same time the constitutional values basic for the American state and society and stipulated by the 1787 Constitution and the first ten amendments to it mostly remain unchanged (although its understanding expressed in particular in the Supreme Court decisions has also changed with time, however those values were not subject to doubts and its meaning was not undermined).
The concept of «living constitution» appeared in the American constitutional doctrine on purpose: the laws which clarify the constitutional principles are changing; the judicial interpretation of those principles is changing, however the very Constitution and the values laying in its basis remain unchanged providing succession for the legal system evolution and stability of the constitutional order.
The concept of the «living constitution» is considered to reflect mostly American or Anglo-American realities of constitutional tradition (for example, in Canada we have similar concept of the «living tree»). This happened because the American model of constitutional review presupposes that the court trying a case will find the sense of constitutional norms relevant for a particular case and its participants.
However Russian constitutionalism also sees many examples of constitutional principles adapting to the changing conditions. The Constitutional Court of Russia in some cases uses the notion «social historical con-text» or «particular historical condition» to reason the relative official construction of the Constitution: «Since the constitutional provisions govern the social relations both directly and via the laws that specify them in a particular system of the legal regulation which is developed in a particular context, the rulings of the Constitutional Court, given in the course of interpretation or construction of the constitutional provisions in relation to a particular legal act that was checked by the Court in the system of the legal regulation and constitutional practice existing at the moment, can be clarified or checked to establish an adequate meaning of the constitutional norms, their spirit and letter in a particular social and legal conditions of their imple-
mentation, including the changes of the legal regulation system», - the Constitutional Court stated in its decision on the «Governors appointment case» of 21 December 2005 No. 13-P.
Judicial interpretation of the Constitution is a useful means to provide stability of the constitutional order. The body of constitutional review dealing with a particular norm and checking its compliance to the Constitution tests not only its formal compliance to the text of the Fundamental Law, but also whether this norm corresponds to the constitutional values and principle of legal definiteness, and in a wider meaning whether its occurrence is predictable in the context of constitutional development.
The Constitutional Court of the Russian Federation in particular stated many times on the «predictability of legislative policy» (The Constitutional Court decision of 29 January 2004 No. 2-P), «predictability of legal consequences» in relation to the laws adoption (The Constitutional Court decision of 15 December 2011 No. 28-P), «stability of legal regulation» as a reflection of the «general legal principle of definiteness» (The Constitutional Court ruling of 5 February 2007 No. 2-P).
CONCLUSION
Any institutional changes that occur at «periphery» (at the legislative level, at the level of implementation or any other level) will meet the test of stability only in case they comply with constitutional principles, correlate constitutional values and are implemented within the framework of constitutional aims established by the stable «core». The first of these conditions is quite obvious and rises no doubts while the rest two conditions are not so notable at first sight. For example, formal compliance of a legislative novelty which was revealed in the course of legislative analyses to the rule of the fundamental law does not yet mean that this novelty is based on the «spirit» of it and adheres to the logics of constitutional development. Except for formal compliance to the constitutional text the rule should necessarily follow from the aims declared by the constitution and should not cast doubts on the constitutional values. Institutional changes connected to the introduction of a new rule (or rules) will not cause instability if introduced in compliance with these three conditions since they will be predictable and comprehensible.
СПИСОК ЛИТЕРАТУРЫ
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ИНФОРМАЦИЯ ОБ АВТОРАХ
Марат Сабирьянович Саликов - заслуженный юрист Российской Федерации, доктор юридических наук, профессор, заведующий кафедрой конституционного права, Уральский государственный юридический университет (ул. Комсомольская, д. 21, Екатеринбург, Россия, 620137; e-mail: kp@usla.ru).
Светлана Сергеевна Кузнецова - кандидат юридических наук, доцент кафедры конституционного права, Уральский государственный юридический университет (ул. Комсомольская, д. 21, Екатеринбург, Россия, 620137; e-mail: kp@usla.ru).
Артур Николаевич Мочалов - кандидат юридических наук, доцент кафедры конституционного права, Уральский государственный юридический университет (ул. Комсомольская, д. 21, Екатеринбург, Россия, 620137; e-mail: artur.mochalov@usla.ru).
INFORMATION ABOUT THE AUTHORS
Marat S. Salikov - honored lawyer of the Russian Federation, doctor of juridical sciences, professor, head of Department of constitutional law, Ural State Law University (21 Komsomol'skaya str., Yekaterinburg, 620137, Russia; e-mail: kp@usla.ru).
Svetlana S. Kuznetsova - candidate of juridical sciences, associate professor of Department of constitutional law, Ural State Law University (21 Komsomol'skaya str., Yekaterinburg, 620137, Russia; e-mail: kp@usla.ru).
Artur N. Mochalov - candidate of juridical sciences, associate professor of Department of constitutional law, Ural State Law University (21 Komsomol'skaya str., Yekaterinburg, 620137, Russia; e-mail: artur.mochalov@usla.ru).
Дата поступления в редакцию / Received: 25.05.2018
Дата принятия решения об опубликовании / Accepted: 04.06.2018
© М.С. Саликов, 2018 © С.С. Кузнецова, 2018 © А.Н. Мочалов, 2018
