When studying the legislative supremacy of parliament, it is of fundamental importance to grasp that, in terms of classical constitutional legal theory, the power of Parliament in the absence of a written constitution is supreme or sovereign. However, the constitutional and legal fact that Parliament has the ultimate law making power within the State, does not mean that there are no restraints on what parliament may do. The law making powers of Parliament, while theoretically and legally unlimited, are in fact constrained by the electorate to which Parliament is accountable, and by economic, moral and political necessities . In terms of accountability to the electorate and the limits which imposes on Parliament's powers, it is necessary to appreciate the historical foundation of democracy and the idea of individual rights.
Nowadays, the 'supremacy' of Parliament in the United kingdom must also be considered against the United Kingdom's membership of the European Community and European Union, which has significant implications for the classical doctrine of sovereignty .
Since 1972, when the United Kingdom agreed to the European Community, the United Kingdom has in many respects ceased to be an autonomous, independent State and has become a member of an ever expanding European political, economic and legal order, the impact to which reached the heart of the constitution .
To illustrate further the distinction between absolute legal power and practical power, in terms of law, the Crown has the right to appoint the Prime Minister of its choice, the power to dissolve Parliament when it chooses. To understand issues such as the appointment of a Prime Minister and the rules regulating the dissolution of Parliament, it is necessary to understand the conventional rules which have developed over time and have take on binding force.
The Constitution of Russia
As mentioned above, Russia has a new written Constitution, adopted by national referendum on December 12, 1993. This outlines the relationship between individuals and Government. This also defines the power of the Russian state and its agencies, and says who can do what and where the power limits are. The Constitution of the Russian Federation has supreme legal force and is effective throughout the Russian Federation. It includes such outlines as the Fundamentals of the Constitutional System, Rights and Freedoms of Man and Citizen, Judicial Power and many more .
In 1988 the USSR Constitution was substantially re-written to create a new parliament, the Congress of People's Deputies, as well as a full time legislature in the form of a revamped USSR Supreme Soviet. The electoral system was overhauled to allow for multi-candidate elections. The Constitution incorporated equivalent reforms, to create a Russian Congress of People's Deputies and Supreme Soviet .
There were further developments, in particular, a Presidency was introduced in the USSR with almost indecent haste in march 1990. Gorbachev was elected, though by the Congress of People's Deputies rather than direct suffrage as the Constitution required. Russia followed suit by introducing the post of President of Russian Federation. El'tsin was elected by popular mandate and took office in July 1991. His constitutional powers paralleled those of the Soviet President, but reflected the strengthening of the presidential position evidence by the constitutional reforms in the USSR of December 26, 1990 .
The Soviet Union had dissolved by the end of 1991. Russia was left with a patchwork Constitution which continued to refer to the USSR, and which did not clearly separate power between the legislature, executive and judiciary. The President promised his people a new Constitution and new parliamentary elections. It was therefore no surprise that the draft constitution presented on a take-it-or-leave-it basis for the ratification by popular referendum on December 12, 1993 was based on the 'presidential' not parliamentary drafts, and that its terms ensured a favourable regime for the President .
Russia's new Constitution (of December 1993), has the merit of establishing a formal separation of powers between the legislature, the executive and judiciary in article 10. however, it does not ensure an even balance. This can be seen most clearly by comparing the new constitutional provisions with the old one.
Changes in Russian Constitution from the Past
The constitution is supreme and has direct application (article 15 - 'the constitution of the Russian Federation shall have supreme legal force and direct effect and shall apply throughout the territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation must not contradict the constitution of the Russian Federation.) . Therefore laws shall be subject to official publication and unpublished laws shall not be applied.
The courts' role as one of the branches of state is emphasised by the expression 'judicial power' used to in the legal system. But one or two factors enhancing judicial independence have gone. Unlimited tenure for judges, introduced as an amendment to the previous constitution in December 1992, is no longer constitutionally guaranteed, and judges below the highest level are appointed by the President (article 128 (2) .
Constitutionalism
'Constitutionalism' is therefore the doctrine, which governs the legitimacy of government action . By constitutionalism it is meant, in relation to constitutions written and unwritten (of the United Kingdom and Russia), conformity with the broad philosophical values within a State. Constitutionalism implies something far more important than the idea of 'legality', which requires official conduct to be accordance with pre-fixed legal rules. A power may be exercised on legal authority; however the fact is not necessarily determinative of whether or not the action was 'constitutional'.
Therefore, constitutionalism suggests the limitation of power, the separation of powers and the doctrine of responsible accountable government. However, before discussing these factors, the Rule of law of the United Kingdom and Russia, must firstly be examined.
The Rule of Law
The rule of law has been given many different definitions. A lecturer in 1885, named Dicey explained one of these as ' equity before the law, or equal subjection of all classes to the ordinary law of land administered by the ordinary law court' . This implied that no one was above the law; that officials like private citizens were under a duty to obey the same law; and that there were no administrative courts to which were referred claims by citizens against the state or its officials.
Dicey also believed that the rule of law can mean that the constitution is the result of the ordinary law of the land, expressed a strong preference for the principle of common law declared by the judges as the basis of citizen's rights and liberties . While Dicey's views have greatly influenced subsequent attitudes to constitutional law in Britain, what needs to be explored is the main features of the rule of law with the United Kingdom's and Russian constitution today.
United Kingdom's Rule of Law
In the United Kingdom, the rule of law can firstly express a preference for law and order within a community. In this sense, the rule of law is a philosophical view of the British society, which is linked with basic their democratic nation. The rule of law can also express a legal doctrine of fundamental importance, namely the government must be conducted according to law, and that in disputed cases what the law requires is declared by judicial decision . Finally the rule of law refers to a body of political opinion about what the detailed rules of law should provide in matters both of substance ( for example whether the government should have power to detain citizens without trial) and of procedure ( for example the presumption of innocence in criminal trials, and the independence of judiciary).
The rule of law can therefore mean the supremacy of law over people, and in particular over rulers; and thus the protection of the citizen from arbitrary government. In modern times it has been argued that one fundamental requirement of the rule of law is the separation of powers; the clear division of the three functions of government, executive, legislature and judiciary. Thus, for example the executive should not be able to adjudicate the care of conflicts arsing from legislation.
Russia's Rule of Law
In the 20th century the "bourgeois" and the "socialist" Constitutional law withstood. Two models were based on the contrary principles. Thus the soviet Constitutional law rejected the ides of the "rule-of-law state", the principle of the separation of powers, the professional parliament .
At the same time even in the soviet Constitutional law it was possible to see the formal resemblance with the Western Constitutional law of United Kingdom. In present the Constitutional State is a symbol of the democratic government, which is recognised by the countries with different political and legal traditions.
Though the national Constitutional law keeps on the distinct features the universal standards of the constitutional government are elaborated. In Russian constitutional theory the constitutional review is considered as an element of the constitutional state, which ensures the supremacy of the Constitution and prevents from an arbitrary activity of the governmental bodies and restoration of a totalitarian regime. Now it is obvious that the way to the "Rule-of- Law State" may be long, and the Constitutional court is an important factor of the establishment of the constitutional values .
Republican and Monarchical Constitutions
A republic, such as Russia is a state that has a democratically elected President as its figurehead, answerable to the electorate and the constitution. The Russian presidential office is both a symbol of statehood and the repository of many powers. In the name of the State, the President will enter into treaties, make declarations of war, and represent the State on formal international and domestic occasions . Additionally, the President of Russia has responsibility for proposing legislation to give effect to the political programme that gave him the mandate of the people.
Looking at the United Kingdom as the example of a sophisticated Western democracy based on constitutional monarchy, the position of the head of State is very different to Russia's. Queen Elizabeth II is the head of State, and all acts of government are undertaken in the name of the Crown . This statement implies the great power is accorded to the Queen. In reality, however, and with the exception of important residual powers, this is not the case. It is true to say that the Queen is United Kingdom's figurehead, the symbol of nationhood, on a domestic and international level.
The Crown also represents the continuity of the State. From an historical constitutional viewpoint, it matters little which leader of which political party at any one time occupies the office of Prime Minister, or whether he or she as a Labour or Conservative Prime Minister, for he or she will be exercising all powers in the Queen's name. The Crown enjoys enormous legal, theoretical power but little practical power.
The legal powers held by the Crown are, for the most part, exercised in her name by the elected government of the day. The rules which restrict the monarch's powers are for the most part non-legal. The restrictions comprise the all important conventional rules of constitutional practice which regulate so much of the United Kingdom's constitution.
In addition to representing the symbolic figurehead, the role of the Crown may be said to be protective. The Queen, it has been said, has the power to 'warn and advise' the Prime Minister of the day . Queen Elizabeth II, since her accession in 1952, has seen many Prime Ministers, both Conservative and Labour, enter and leave office. Throughout that 50 year reign, the Queen has quietly influenced government, and gathered vast experience in domestic, international and particularly Commonwealth affairs. That experience represents a wealth of knowledge at the disposal of the government in power. While the role of monarchy is a matter for contemporary debate, the continuity and prolonged existence of monarchy remains a distinguishing feature of the United Kingdom's constitution.
Separation of Powers
The principle of the separation of powers is considered as a fundamental and constitutional concept, as it is the main principle in the Constitutional law of many countries, including Russia . It may be included into the text of the Constitution or be developed in the Constitutional doctrine. This principle determines the character of the relations of the governmental bodies.
A constitution with clearly defined boundaries to power, and provisions retraining one institution from exercising the power of another, is one in conformity with the doctrine of separation of powers . This arrangement is most readily achievable under a written constitution such as the Russian constitution. At the other end of the spectrum of constitutional arrangements from a nearly 'pure' separation of powers is totalitarian state or purely monarchical state . Under such a constitution will be found a single figure, or single body, possessed with the sole power to propose and enact law, to administer the State, and both to apply and to adjudicate upon the law.
Separation of Powers in the United Kingdom
Under the largely unwritten constitution of the United Kingdome, the separation of powers is difficult to ascertain and evaluate. There is undeniably a distinct legislative body, executive, and judiciary, each exercising differing powers.
Contrary to a view promoted by Montesquieu in the 18th century, there is no formal separation in the United Kingdom of the functions of the executive, legislature and Judiciary . For example, the Lord Chancellor is a government minister (usually a member of the cabinet), a member of the House of Lords and the head of the judiciary. It may be argued, however that it is not the intermingling of these three functions that poses the real threat to individual liberty but the concentration of a large amount of power in the hands of a few individuals.
Therefore only some degree of separation can be shown in the United Kingdom, whereby civil servants may not be MP's, yet government ministers must sit in one of the two Houses of Parliament . The strongest aspect of separation is therefore, the independence of the judiciary from both the executive and the legislature, although the most senior judges, as members of the House of Lords, can be involved in making legislation.
Separation of Powers in Russia
The history of the principle; separation of powers in Russia is short. It was unknown in Russian monarchy; it was abolished later by the soviet government which preferred centralised power and unity of the legislative and executive powers. It has become the constitutional principle in the result of perestroika . It was included in the Constitution of 1993 as one of the main principles. According to the article 10, the state power in the Russian Federation is exercised on the basis of its division into legislative, executive and judicial authority . The legislative, executive and judicial bodies are independent. The principle of the separation of powers determines the relations of the federal governmental bodies, governmental bodies of the members of the federation and the relations between federation and the members of the federation.
The principle of the separation of powers is limited by another constitutional principle, that is, the principle of the unity of the state power of the Russian Federation (article 5). This principle first of all concerns the executive and the legislative powers. According to the article 77 of the Constitution the executive bodies of the Russian Federation form a unified system of executive authority . The vertical structure of the governmental bodies was typical for the previous form of the government. In present it is under discussion. According to the Constitution the President may suspend acts of the executive bodies of the members of federation if these acts contradict to the Constitution and federal laws or violate human rights . However, the acts should be analysed by the court. The President by the order regulated the procedure of the nomination of the heads of the executive bodies. The Constitutional court finds that though the members of the federation are able to determine the system of the governmental bodies by their own acts in a case of a gap in a law and as a temporary measure the executive bodies may be regulated by the acts of the President. In several cases the Constitutional court supports the centralised court system. According to it opinion the members of the federation are not able to have their own court systems.
Giving interpretation to the principle of the separation of powers the Constitutional court determines that it regulates not only relations of the federal governmental bodies but the governmental bodies of the members of federation. Thus, the principle of separation of powers is a new principle of the Russian Constitutional law. The content of it, mainly reflects national specific, traditional of centralised government. From the other side, this principle is a step to the universal values of the constitutional government, a step that reflects all the paradoxes and contradictions of the transitional period.
Nonetheless, despite separation of powers, there is not really a balance of Power. The new Constitution of Russia has been described as 'super-presidential' .
The president sets internal and external policy, makes the major appointments, forms and heads the Security Council and is Commander in Chief. He has unfettered power to issue edicts and regulations, so long as they are not contrary to the Constitution or federal laws (article 90) . The Government, which he controls, may issue decrees and regulations 'on the basis of and in execution of the Constitution... federal laws, normative edicts of the president...' (article 115). The President can therefore repeal them if they fail to conform.
Therefore it can be seen that the separation of powers is greater, but not really balanced, in Russia than it is in the United Kingdom. This is because the United Kingdom's constitutional history records a long struggle for power and various attempts to divide that power between the Monarch, the Lords and the Commons.
Judiciary in the United Kingdom
The above issues are controversial. It is clear, however, that an important counterweight to oligarchy is a vigorously independent judiciary, and here the UK is on surer ground. Judges in the United Kingdom are appointed by the Lord Chancellor (and the most senior appointments are made on the advice of the Prime Minister) but only after consulting senior judges. Judges may not be MPs (Members of the House of Commons) and are expected to refrain from political activities . They are paid out of a special fund and thus not subject to financial pressure from politicians. Conventions prevent them from being individually criticized by MPs. Finally, they can only be dismissed by a resolution of both Houses of Parliament.
The Judicial function of the United Kingdom is therefore not assigned to the professional judiciary alone. Many disputes which arise out of the conduct of government are entrusted to administrative tribunals. Today these tribunals are a recognised part of the machinery of justice; they operate subject to the supervision of the superior civil court.
As well as their primary function of settling legal disputes, the courts exercise legislative function (for example, making rules governing court procedure) and administrative functions ( for example, administering the estate of deceased persons). In matters of Community law, judicial functions are exercised for the United Kingdom by the European Court of Justice .
Russian Jurisdiction
The Russian Federation, unlike the United Kingdom, is comprised of eighty subunits, twenty-one republics, forty-nine regions, ten autonomous districts, six territories and one autonomous region . The difference in designations not only has historical grounds but also affects the constitutional status of subunits. The subunits have their own jurisdiction and are competent to enact legislation. Consequently, not all legislation is adopted at the federal level. The subunits have full and exclusive jurisdiction over most issues. Although the jurisdiction of the Russian Federation is very broad, many important matters still fall under jurisdiction of the subunits. Even more powers are transferred by the federal centre to subunits by means of the treaties on allocation of competence .
The constitutional jurisdiction of the Russian Federation has many written documents. Some of these are the adoption and amendment of the Constitution of the Russian Federation and federal laws and supervision of compliance with them.
The federal structure and territory of the Russian Federation; and, regulation and protection of the rights and liberties of private persons and citizens; citizenship of the Russian Federation; and regulation and protection of the rights of national minorities are also part of their constitutional jurisdiction . Other important documents within the Russian constitutional jurisdiction are the foreign trade relations of the Russian Federation and federal conflict of laws rules.
On the matters of joint jurisdiction, legislative and other regulations of sub units of the Russian Federation are subordinate to federal regulation. Local rules which fail to comply with federal statute are not enforceable .
Conclusion
It can therefore be concluded that the foreign Russian constitution of law has been developed under very different historical and ideological influence to the constitutional legal system of the United Kingdom. The main difference is that the United Kingdom has an unwritten constitutional law whereas the state of Russia have a written constitutional law.
From the discussions above, some conclusions can now be reached about the characteristics of the United Kingdom's constitution. In summary, it can be said that it is largely an unwritten constitution, which is flexible in nature, and fairly supreme. The United Kingdom's constitution exhibits mainly, but not completely separate powers as it is a monarchical constitutional law.
No Act of Parliament may be held unconstitutional on the ground that it seeks to confer powers in breach of the doctrine . While the function of legislature and executive are closely interrelated, and ministers are members of both, the two institutions of Parliament and government are distinct from each other. Practical necessity demands a large measure of delegation by parliament to the executive of power to legislate .
While the classification of powers of government into legislative, executive and judicial powers involves many conceptual difficulties (for example, no sharp boundary can be drawn between judicial and administrative functions, or between legislation and administration), within a system of government based on law it remains important to distinguish in constitutional structure between the primary functions of law-making, law-executing and law-adjudicating . If these distinctions are abandoned, the concept of law itself can scarcely survive.
On the other hand, it can be concluded that the written Constitution of the Russian Federation from 1993 technically contains all the bricks needed to build constitutionalism. The separation of powers between the state organs is established as well as a judicial body to guard the Constitution. Newly gained independence of the courts is an important prerequisite for developing the rule of law.
Authoritarian presidential power, which was the result of the hectic power struggle between the legislative and the executive after separation of powers, enabled an excessively powerful presidency to be the winner of the struggle. Therefore, a weak party system and an underdeveloped civil society allow authoritarian rule of the president to go even further than the constitution permits. Thus a balance of powers has not been achieved in the new Russian Constitution.
Therefore, it can be concluded that the United Kingdom and Russia currently and historically have shared different legal systems within the assortment of their constitutional law.