The Right of Legislative Initiative of the Constitutional Court of the Russian Federation (in the context of the principle of "no man is to be judge in his own case")

Abstract

The article analyzes the legal construction of P. 1 Art. 104 of the RF Constitution that assigns to the Constitutional Court of the Russian Federation the right of legislative initiative on of its Jurisdiction. The paper discusses the narrow and the broad approaches to legal understanding of the term matters of jurisdiction in relation to the Constitutional Court, provides arguments to refute the reasons of the representatives of the narrow approach with regard to the violation of the principle of separation of powers in the realization of the right of legislative initiative of the Constitutional Court of the Russian Federation. The author examines the competence approach to granting the right of legislative initiative and concludes that the Constitutional Court of the Russian Federation is one of the organs of general competence, so it must possess the general (not limited) right of legislative initiative. Thus, a restrictive interpretation of the phrase matters of jurisdiction used in relation to the Constitutional Court of the Russian Federation is incorrect. The article deals with the historical aspect of putting the principle of no man can be judge in his own case into legal practice. The author contests the assertion that implementation of the right of legislative initiative would put the Constitutional Court of the Russian Federation in the position of a judge in its own case. Then the author provides the following arguments: implementation of this right does not guarantee enactment of a draft law with original textual content; a federal organ of constitutionality review in most cases examines the content of the draft law in question taking into account its law enforcement practice rather than its textual flaws; when formulating the conclusions we should rely on a presumption of good faith of judges of Constitutional Court of the Russian Federation, and not vice versa. The study concludes that the fact that the Constitutional Court of the Russian Federation very rarely realizes its subjective right of legislative initiative guaranteed by the Constitution can be explained by political considerations, as well as by the fact that the realization of this right does not amount to main functions of a federal body of constitutionality review. A widespread in the legal science opinion according to which the Constitutional Court of the Russian Federation exercising its right to legislative initiative violates the principle no man can be judge in his own case is based on an extremely broad interpretation of the legal content of the principle, such an interpretation is inconsistent with a provision of the Constitution of Russia which gives the federal organ of constitutionality review the right of legislative initiative.