Who’s to blame for what happened to the Russian Constitution, and what do we do about it now?

December 16, 2015

Mikhail Khodorkovsky

Russia’s Constitution Day on 12 December, marked by the detention of one of the Constitution’s authors for organising a peaceful picket prompted many commentators to decry the fact that the regime is virtually ignoring the country’s Basic Law – and this is absolutely true.

In 2015, twenty-two years after the adoption of the Constitution, Russia is once again mired in a profound constitutional crisis; this crisis has been precipitated no less by the regime’s own conscious attempts to distort the Constitution’s principles and objectives, than by weaknesses inherent in the Constitution itself.

Today, the Constitution is no more than a piece of paper – a sham symbol of federality, freedom and democracy. In practice Putin and his associates treat it however they see fit – and if the regime had at least notionally complied with convention in previous years (as when extending the presidential terms, for example), convention now doesn’t bother it in the slightest.

The destruction of the Constitution was actually already underway fifteen years ago, having begun when the makeup of the Federation Council was changed, and governors and regional speakers lost their seats. Putin gradually subjugated the regions and, taking advantage of the Beslan tragedy, abolished gubernatorial elections as early as 2004. It was becoming ever more apparent that his goal was to comprehensively dismantle the country’s federal structures and assume personal vertical control. The Constitutional Court’s 1996 ruling that there were only two ways of securing a governorship – direct election or appointment by the federal subject’s legislature – was pointedly ignored.

Further nails were hammered into the coffin of the Constitution under Medvedev. The presidential term of office was extended from four to six years, and the Duma’s legislative period from four to five, under the laughable pretext that presidential elections and those to the lower house of parliament ought be held at maximally large intervals from one another. What was stopping the regime from solving this problem by technical means, without tampering with the Constitution? Nothing other than Putin’s desire to lord contentedly over the country for twelve years straight without being distracted by such trifles as election campaigns.

After that, Putin definitively stopped bothering with the constitution, the way one might   cease to bother with an elderly relative who’s finally lost her marbles.  And thus we witnessed the introduction of significant restrictions on freedom of assembly and the media, while privacy provisions were also rolled back. And all under the pretext that this would contribute to the fight against external (or, more rarely, internal) enemies.

Finally, judging by the events of early December 2015, we can assert that the Constitution, as basic law has now ceased to exist altogether. At the Kremlin’s behest, the State Duma passed a law allowing the Constitutional Court to decide whether or not Russia must comply with international court rulings, thereby reversing the priority of international law over domestic legislation. This represents an outright overthrow of the Constitution – and namely of its first chapter, which cannot be revised other than by the Constitutional Assembly. The Assembly can either retain the current version of the text, or draft a new version and put it to a general referendum.

What we have here is a comprehensive rejection of the Constitution as the legal foundation of the country. Its overthrow has already taken place, though this fact has not yet been formally announced by a single Kremlin press secretary.

In such a situation, should we be defending the existing Constitution, a course of action many are calling for?

The answer, in my opinion, is no.

This basic law, inconvenient for the regime in many respects, can and should be used to demonstrate the hypocrisy of the Kremlin, which is exhorting society to obey repressive laws passed by illegitimate authorities. But to attempt to revive a corpse in such a situation would be a futile task.

Having lived a long (though not particularly happy) life together, the current political regime and the 1993 Constitution must also depart the scene together.

We, for our part, must first of all understand the fundamental causes of the current crisis. These are: the lack of safeguards in the constitution against its own violation; the irremovability of the regime; and the degradation of constitutional justice. The last fifteen years have clearly demonstrated that the basic law is incapable of withstanding the blows of the ruling elite, which is prepared to take any measures to perpetuate its dictatorship.

In order to ensure the irreversibility of the democratic and constitutional processes, the executive branch must be subjected to political and legal constraints. Mechanisms must also be devised to protect the Constitution – mechanisms, I must add, that would protect it from the state!

We won’t, I assume, be able to proceed without firmly securing the nation’s right to rise up against usurpers by means of the requisite legal instruments, although this in itself will clearly not be enough. After the mechanisms of implementing and defending the Constitution have been elaborated, Russia’s constitutionalists will face fresh challenges, such as how to constitutionally support a strong government, how to construct genuine federalism, and how to organise local government.

Most importantly, we must ensure the country’s transition to a parliamentary democracy wherein the totality of executive power in Russia is exercised by the federal government, formed in accordance with election results. Under such a system, the president does not wield the power of any of the branches of government, and primarily performs the functions of supreme political arbiter and guarantor of citizens’ rights.

For almost a century, Russia has proclaimed itself a federation, and possesses the superficial secondary hallmarks of a federal system – a bicameral parliament and regional legislatures. But Russia is not a federation in the true sense of the word, because the real bedrock of federalism – decentralisation – is nowhere to be seen.

It is clear that the decentralisation of economic and political life is an absolute prerequisite for Russia, and that, in the absence of decentralisation, a country like Russia can only develop along imperial lines. The federalisation of Russia – the genuine rather than notional variety, involving the creation of a dozen or more new centres of economic and political life – must therefore become a constitutional priority. The country requires more than Moscow alone.

Finally, the development of local government represents a major strategic goal for Russia. We must, as far as possible, endow the public itself – or, more precisely, the organs of authority created and directly controlled by the public – with the power to coordinate its own existence.

This is the sole means of ensuring the country’s unity in a variety of local forms of political and cultural life, and of making certain that society’s resources are used to cater for people’s actual needs.

If this undertaking is to be a success, powerful political and legal stimulants must be put into place: first of all, budgetary independence should be constitutionally guaranteed to local governmental authorities.

If the acutely pressing task of restoring constitutional order can and must be fulfilled by means of previously prepared urgent constitutional amendments, any long-term objectives can be achieved only within the framework of a project to devise a new Constitution.

To lay the groundwork for this project, we must convene the Constitutional Assembly (the current Constitution makes provisions for this, but it is as yet impossible: over the course of the last twenty-two years, neither the previous nor the present regime took the trouble to pass the relevant constitutional law). The Constitutional Assembly must then put together and approve the text of the new Constitution, as well as putting forward a mechanism for its adoption.

This will be a long and difficult road. But the most important thing is to get going. It’s been a year now since Open Russia began its discussion around the Russian Constitution. We must now go several steps further; working towards two distinct objectives with the help of a community of experts, we must firstly prepare a set of urgent amendments to the text of the existing Constitution, and, secondly, lay the foundations of a long-term project to devise the future constitution of a free and democratic country.

When Russia finally witnesses a change of regime, we must be well-prepared.

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