The Institute of Modern Russia continues the discussion on the issues of Russian constitutionalism. In the final installment of this essay, political scientist Vladimir Pastukhov proposes the construction of a “tuning fork” that would allow the political tuning needed to breathe new life into civil society and the state.

 

One of the urgent measures of the suggested constitutional reform in Russia is the restoration of the functionality of the Constitutional Court. Depicted above is Valery Zorkin, the current chairman of the Constitutional Court of the Russian Federation. Photo: Valentin Ilyushin / Interpress / TASS

 

 

Constitutional Provision for Succession of Power

As I wrote in my previous article, I am deeply convinced that autocracy is the evolutionary answer of Russian civilization to historical challenges, and getting rid of it finally and unalterably will be possible only by carrying out constitutional reforms on a large scale and creating a nation state according to principles different from imperial ones—for example, federative ones. Nevertheless, it won’t be possible to advance constitutional reform without somehow having weakened this “autocraticism.” The authoritarian developmental tendency will eventually win over the democratic one every time—if only because people always prefer to move along the path of least resistance until that direction is blocked.

In order to break the vicious cycle, Russian constitutionalism can be inoculated from autocracy. This vaccination, of course, will not be a panacea, completely excluding a relapse into the disease, but it can substantially relieve the symptoms and ease the cure.

The vaccine against autocracy is, of course, the succession of power. By the way, in the present Constitution, the succession of power is nowhere separately set forth as a general guiding principle, although it is implied. Introducing it into the constitutional fabric and consistently embodying it in all the norms that somehow or other concern the establishment of the state government bodies is the most important task of the constitutional reforms, following the reorganization of the Constitutional Court.

It goes without saying that the highest priority is to remove the artificial uncertainty over the issue of the presidential term of office (in fact, there is not really any uncertainty about this issue, but only an unfortunate wording of the relevant article, which has been used for self-serving political purposes). Without a doubt, limiting the presidential term of office is not a necessary feature of democracy itself. But under the specific conditions in Russia, considering its grave political case history, such a limitation is necessary. This will force the elite to “get going,” to resort to more elaborate methods of ensuring the succession of power, including strengthening party institutions. Any movement in this direction is progress compared to the present state of things.

But things cannot and must not be limited only to setting clear limits on the president’s term in office. The succession of power must be established in general as a “cross-cutting” constitutional principle, regulating the establishment of all political institutions: the government, the executive branch agencies in the regions, the heads of key departments, and so on.

The constitution must stimulate the circulation of blood in the system, and continuous social mobility. This is one manifestation of the stimulatory role of the Russian constitution to ensure the stable development of society.

 

The Constitutional Ban on Propaganda

In post-communist Russia, the anti-democratic essence and dangerousness of government propaganda, carried out by mass media directly or indirectly controlled by the government, has become especially evident. It manifests itself in the passive control of the government over television and the press, and partially over the Internet. This is part of the problem, but experience has shown that an even greater threat to the development of civil society is posed by government-financed programs of active indoctrination, in other words, the molding of individuals’ behavior by means of aggressively imposing on the citizenry ideologemes and stereotypes that are advantageous to the government and founded largely on lies. 

In other words, the problem is considerably broader than the issue of censorship or of government control over mass media. We are speaking about the necessity of carrying out a deideologization of power, and about a prohibition on programs of “governmental lies”—which means everything that now constitutes the basic content of the government television channels in Russia, and of numerous facilities for misinforming society that camouflage themselves as expert institutes or private media companies. On instructions from the government, all of these impose on contemporary society not only a certain point of view, but a certain system of values.

In essence, Russian society is currently subjected to a constant information assault. This condition is incompatible with healthy constitutional development of any kind. 

Notwithstanding the relatively low level of repressions, which so far have been employed much more rarely and selectively than in the USSR, and given the relatively light censorship, which affords freedom of the press to an extent that would have been hard to imagine in the USSR, the current Russian authorities have succeeded, with the aid of aggressive propaganda, in fully suppressing the ability of civil society to act independently, and in establishing a neototalitarian regime in Russia. It also must be remembered that state propaganda is highly effective in Russia partially because the public does not have a culture of skepticism of information disseminated by media directly or indirectly controlled by the government (from government television to Internet resources managed by government entities).

While avoiding total censorship, and permitting the existence of opposition mass media (everywhere except on television), the system has learned to switch social consciousness on and off on demand. The age-old tradition of manipulation of mass consciousness has been overlaid on the limitless possibilities afforded by the post-industrial information society, and have led contemporary Russia to become a true “factory of lies,” which now operates not only on the domestic market, but also on the export market. This is more than a political problem; it’s a constitutional one.

A constitutional order and democracy are incompatible with the existence of a “fist” of government propaganda, with which it can smash any opposition figure. Therefore one priority “restorative” measure of constitutional reform must be a constitutional prohibition on propaganda.

This is a preventative measure, whose goal is the prevention of relapses into totalitarianism, in whatever form. This is a rather difficult task, the approach to which needs to be carefully worked out. The solution must be much broader than just declaring the principle of forbidding censorship or limiting the government monopoly on the mass media, although it must include those measures.

A prohibition on propaganda implies a constitutional declaration of firm standards for the objective transmission of information; the impermissibility of imposing one point of view to the detriment of alternative views; and the impermissibility of abusing citizens’ subconsciousness through emotional influence to achieve a calculated behavioral effect. The measures for prohibiting mass media from being used for propaganda purposes certainly include the creation of real public control over mass media (first of all, electronic media), the guarantee of their independence from parties, and political tolerance and neutrality. Specific measures for the realization of the constitutional prohibition on propaganda must be provided by corresponding constitutional laws (a category of laws concerning constitutional provisions of the Russian Constitution), but the principle itself must be stated in the constitution.

 

The Right to Trial by Jury

Correcting judicial “strabismus” is another priority task of constitutional reform. And although the main burden of implementing judicial reform and a general reform of the law enforcement sphere must be borne by constitutional laws, there is one fundamental constitutional amendment that must be adopted immediately: guaranteeing Russian citizens the right to trial by jury not only as an exceptional and seldom-used procedural measure, but as a regular procedure used at the request of the accused in the case of nearly all grave and medium-gravity crimes.

Trial by jury is no doubt a labor-intensive and costly procedure. But there is no other option in Russia but to incur these costs. The court is at the top of the law enforcement food chain, and therefore the degradation of the judicial system and its steady “simplification” (today in Russia more than half of all sentences are pronounced under so-called simplified procedures—in other words, by a judge sitting alone without holding a full hearing of the case and without examining the evidence) are causing a growth of entropy in the entire law enforcement system. 

The court no longer works as an agent of interrogation and investigation, but has turned into a place to register criminal charges. This can be changed only by severing the court from the investigatory and prosecutorial bodies, which can be done only by making jury trials a mass phenomenon. Thus, large investments in the judicial system are unavoidable. Moreover, jury trials must be implemented not only in criminal cases (where they exist, although to a negligible extent), but also in civil proceedings.

Of course, trial by jury is not the only needed reform of the law enforcement system and judiciary. But the majority of measures which should be taken require the appearance of corresponding constitutional laws. And the matter of every citizen’s right to jury trial has to be provided for in the constitution itself. This constitutional innovation should bring in its wake an entire chain of constructive changes in the realm of law enforcement.

 

Equal Access to Resources and Public Control Over Elections 

The most important condition for normalizing political life in Russia is the conducting of honest and effective elections to federal and regional government bodies. Correcting electoral legislation, which should ensure the achievement of this goal, is a long-term task that requires the enactment of a whole raft of constitutional laws. However, there is one issue on which a direct constitutional provision is necessary, and that is the issue of access to resources during elections.

The practice of electoral campaigns over the last five years shows that the basic problem is the inequality of election participants in relation to three types of resources: financial; informational; and political-administrative.

Formally equal candidates for this or that elective office (whether it be president or deputy of a regional legislature) are not really equal, since candidates that are close to the government have the opportunity to receive hidden financing in almost unlimited amounts, to use the scarcely concealed support of mass media controlled by the government, and to rely on government employees for aid (ranging from their mandatory participation in demonstrations for pro-government candidates to the assignment of vote quotas to employees of state and municipal institutions). It is now clear that the only fair elections are those in which the candidates are guaranteed equal access to resources. This is sufficiently important that it should be provided for in the constitution as a basic principle.

And of course, elections, beyond being fair, have to be legitimate. Elections are legitimate if there are no doubts that their results cannot be faked. To this end, the institution of public control over elections must be constitutionally provided for and the monopoly of the Central Election Сommission of the Russian Federation as the only oversight institution removed. This might be facilitated by decentralizing  the work of the commission and changing the way its members are chosen.

 

Constitutional Resuscitation and Constitutional Rehabilitation

Forming the foundation of a constitutional order in Russia is a lengthy and incredibly complex process that will likely take several decades and involve a whole series of successive stages. Therefore it is necessary to distinguish high-priority measures, the goal of which is to put constitutional reform in motion and to bring society out of its stupor (let us call these “constitutional resuscitation”), from longer-term measures that will necessitate careful elaboration and a broad public discussion but are currently impracticable because they require prerequisites that will obviously be lacking at the beginning of constitutional reform (let us call these measures “constitutional rehabilitation”).

 

Constitutional Resuscitation

Constitutional resuscitation measures, like any resuscitation measures, must be provided immediately, as soon as a political window of opportunity opens. In my opinion, such rapid response measures include the above-listed changes concerning the restoration of the functionality of the Constitutional Court; the incorporation into the constitution of the principle of the succession of power; a provision in the constitution forbidding propaganda; a constitutional right to jury trial for a broad category of citizens in criminal and civil cases; and guaranteed equal access to resources and public control over elections. Undoubtedly, public discussion on this issue will reveal several other changes that I have missed and that should be adopted immediately, either as part of a new constitution or as amendments to the current one.

 

Constitutional Rehabilitation 

For implementing longer-term measures, the goal of which is the formatting of the Russian political system as a “nation state,” a permanent constitutional commission (or constitutional convention, or assembly, or council) should be created, which should draft proposals for the fundamental reform of the state system of Russia along three major lines: federative relations, form of government, and local self-government. 

 

A New Federation

Discussion of the new federation will apparently have to transcend the traditional narrow, falsely circumscribed boundaries that reduce the discussion to an argument about the rights of the center and the existing regional entities, and begin at last a painful but necessary conversation about the enlargement of the subjects of the federation and the formation of a limited number of constituent federal lands (states) possessing the broadest powers—up to and including their own civil and criminal legislation, and also about the creation of specially administered territories where the creation of full-fledged subjects of the federation is impossible and not expedient (the vast but thinly populated territories).

 

A New Government

The unity of Russia can be ensured only by strictly complying with the political formula “strong regions, [make for] a strong center.” Therefore, the issue of reformatting and strengthening the central authority is no less important than that of creating and strengthening the new subjects of the federation. Russia needs a truly strong government, the creation of which requires solving the problem of removing the existing (and unconstitutional) dualism of the executive branch: in present-day Russia, the role of government itself is nominal; it fulfills the functions of the Soviet VSNKh (the Supreme Soviet of the National Economy—a governmental body for regulating the economy that existed in the early years of Soviet power), with all of the real powers concentrated in the so-called presidential administration and the Security Council associated with it, whose constitutional status is very unclear.

In essence, post-communist Russia preserves the tradition of the existence of a certain “main” internal power, which is the authoritarian sublimate of civil society.

The authorities must be forced to give up this pseudo-civil society and form a sound government. This can be done in two diametrically opposed fashions, each of which must be subjected to critical analysis during the preparation of constitutional reforms. The first scenario consists of combining the positions of president and prime minister, thereby joining the staffs of the president and the government, with the political functions leaving the presidential administration and going where they should be concentrated—to the party. The other scenario consists of turning Russia into a parliamentary republic, with the head of the executive branch as the head of the government of the party that wins the elections. The president in this case does the political tuning, playing the role of the guarantor of the constitution. But for such a scenario to be successful, there must first be a well-developed party system, and at the initial stages of constitutional reform, this is scarcely possible.

 

New Self-government  

Freeing local self-government from government pressure is clearly the most important condition for the recovery of contemporary Russian society and is a substantial part of the program of constitutional reform. Local self-government must be guaranteed the status of an elected body, powers, and a budget. The basic parameters must be set in the constitution. For Russia, the zemstvo would probably be the most natural model for this. 

Of course, the above-listed issues are not the only ones that must be discussed as part of constitutional reform. This discussion can and should begin today, but it can hardly be finished tomorrow. And we surely will not be able to put the new ideas into practice tomorrow. This is precisely why the institutionalization of this nationwide discussion is needed. And surprisingly, its organization would not even require any additional expenses.

A constitutional commission (or convention, or assembly, or council) can be formed on the basis of the currently useless Public Chamber of the Russian Federation, which presently plays the role of a fifth wheel in the Russian political system.

  

*This article was originally published in Russian on the website of Open Russia.

 

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