Since September, deputies’ signatures have been being collected in the State Duma to remove from the Russian Constitution the ban on state ideology and the principle of priority of international law over domestic legislation. Higher School of Economics professor and constitutional law specialist Juliana Demesheva reviews the suggested legislation.
The Russian Sovereignty group is headed by Yevgeny Fyodorov, State Duma deputy and member of the United Russia party. Recently, Fyodorov has been actively calling for a fight against a “powerful fifth column in the media” and accused a popular Russian musician Andrey Makarevich of collaboration with fascists. Photo: Vladimir Fedorenko / RIA Novosti.
“International law exists only in textbooks on international law.”
Albert Einstein
Legal incompetence
The bill seeking to remove the Constitution’s ban on state ideology and its principle granting international law priority over domestic legislation was prepared a little less than a year ago by an interfactional group in the State Duma called Russian Sovereignty. The text of the bill published on the group’s website displays a legal ignorance beyond comparison and is extremely questionable from the point of view of democratic principles.
Let us first examine the bill’s legal errors using the text that follows (the numbering and terminology are original):
Law of the Russian Federation introducing an Amendment to the Constitution of the Russian Federation.
Article 1
Introduce the following changes to the Constitution of the Russian Federation adopted by national vote on December 12, 1993 (Rossiyskaya Gazeta, December 25, 1993):
1) Remove Clause 2 of Article 13 (“No ideology may be established as a state or obligatory one”);
2) Remove the words “universally recognized principles and norms of international law” from Article 15, Clause 4 (“The universally recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied”);
2) Remove the words “according to the universally recognized principles and norms of international law” from Article 17, Clause 1 (“In the Russian Federation recognition and guarantees shall be provided for the rights and freedoms of man and citizen according to the universally recognized principles and norms of international law and according to the present Constitution”).
Article 2
The present Law of the Russian Federation introducing an Amendment to the Constitution of the Russian Federation will come into force on the day of its official publication after its approval by a national vote.
It is worth noting that Article 1 includes two provisions. Also, instead of using the term “Part” to designate these provisions, the bill’s authors use the word “clause,” which is a gross violation of legal drafting methodology.1
Beside this evident technical error, the proposal to change the provisions of Articles 13, 15, and 17 of the Constitution of the Russian Federation by adopting a constitutional amendment strikes the eye right away. This proposal cannot be carried out, since it contradicts the Constitution itself. No amendments can be introduced to those articles that the bill’s authors would like to change.
The fact is that Articles 13 and 15 belong to the first chapter of the Constitution, which lays out the foundations of the country’s constitutional system, while Article 17 belongs to the second chapter, which establishes human and civil rights and freedoms. Because of their importance, the provisions of both Chapters 1 and 2 are constitutionally and legally protected, and there exists a special procedure to change these provisions according to which they can only be reviewed—not amended—by adopting a new Constitution. It is also important to emphasize that it is the Constitution itself and not its individual articles that are subject to revision. Any review of Chapters 1 and 2 is only possible as part of the process of drafting and adopting a new constitution.
Furthermore, Article 135, Part 1, of the Constitution clearly and categorically states that provisions of Chapters 1 and 2 may not be revised by the Federal Assembly (composed of the State Duma and the Federation Council). This law serves as an additional check on lawmakers’ ability to singlehandedly review Chapters 1 and 2.
One might also wonder about the proposal to submit a bill for constitutional amendment to a national vote. Two points are worth noting here. First, Article 136 of the Russian Constitution states that amendments can only be introduced to Articles 3–8 of the Constitution in accordance with the existing law on introducing amendments to the Constitution. In the case of the legislation proposed by the Russian Sovereignty group, the legitimacy of the proposal is based on the title match of the law only. Second, a special procedure already exists for adoption of a law that would introduce amendments to the Constitution (namely, the procedure outlined in Article 136 ) that does not in any way suggest putting such a law to a national vote.
It is also worth mentioning that unlike the 1978 Constitution of the RSFSR, the current Constitution of the Russian Federation does not permit the adoption of any laws, including those introducing constitutional amendments, by referendum, and the federal constitutional law “On the Referendum of the Russian Federation” directly prohibits the submission of legislation that falls under the jurisdiction of federal authorities to a national vote.
It seems that such a controversial piece of legislation might have appeared as a result of confusion between cause and consequences. One cannot assign a subservient role to the Constitution and change its norms every time the necessity of resolving a political issue arises.
However, it is easy to figure out where the idea of a referendum came from in this particular case. Articles 134 and 135 establish the only review procedure allowed by the Constitution for changes to Chapters 1 and 2: if a proposal for such review introduced to the State Duma is supported by three-fifths of the members of the Federation Council and the State Duma, then a Constitutional Assembly will be convened, after which there are two possible scenarios. In the first, the Constitutional Assembly might confirm the inviolability of the Constitution of the Russian Federation and terminate the review process. In the second, a new Constitution of the Russian Federation might be drafted, which could be adopted either by a two-thirds vote of the Constitutional Assembly or by referendum.
Putting aside the lawmakers’ monumental ignorance of legal procedures, the passage of the proposed bill is still impossible, since in the 20 years since the adoption of the current Russian Constitution, the federal constitutional law that would establish and permit the Constitutional Assembly to convene has not yet been adopted. Thus, before introducing initiatives that would alter the fundamental provisions of the Constitution, lawmakers should fill in the gaps in the legal framework.
In the canon of Russian constitutional law, there exists an opinion according to which the Constitutional Assembly should only be convened when there is a need to review the fundamental provisions of the Constitution. Until there is a need to review Chapters 1, 2, and 9 of the Constitution, the absence of a federal law on the Constitutional Assembly guarantees the stability of the fundamental law. Such is the case when it comes to the bill proposed by the Russian Sovereignty group.
Contradictions to democratic values
Let us now analyze the substance of the proposed changes. The content of the bill is extremely questionable from the point of view of both democratic values and the fundamental principles of Russian constitutional law.
The principle of ideological pluralism is one of Russia’s major democratic achievements. The absence of obligatory ideology and freedom of opinion and speech are key characteristics of democratic countries. It is worth reminding readers that no Soviet constitution permitted pluralism where ideology and politics were concerned. The 1977 Constitution of the USSR directly established the hegemony of Marxist and Leninist ideology. Similar provisions could be found in the 1978 Constitution of the RSFSR.2 It is relevant to recall the following phrase from The Golden Calf, by Ilya Ilf and Yevgeny Petrov: “Inasmuch as you live in a Soviet land, your dreams are bound to be Soviet.”
Ideological diversity and the repudiation of obligatory ideology cannot be considered (or abolished) without regard for the other constitutional provisions that allow them to exist. I am talking about Article 28, which guarantees the freedom of conscience and convictions, and Article 29, which establishes the freedom of ideas and speech. These constitutional regulations are based upon provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The former establishes everyone’s right to freedom of convictions and expression without distinction of any kind, including political and other convictions (Articles 2 and 19 of the Universal Declaration of Human Rights). The latter acknowledges everyone’s right to hold opinions and express them without interference (Article 19, Parts 1 and 2, of the International Covenant on Civil and Political Rights).
These constitutional rights and freedoms are directly linked to the fundamental democratic principle that no one can be prosecuted for his or her convictions, whatever they may be. According to Article 29, Part 3, of the Constitution of the Russian Federation, no one may be forced to express his or her views and convictions or to reject them. Only actions directly prohibited by law are subject to punishment. Therefore, the removal from the fundamental law of the ban on state or obligatory ideology would require alteration of the entire text of the Constitution, as well as of a number of statutory acts, which would result in considerable restrictions on human and civil rights and freedoms.
Disregard for international law
One of the goals of the bill’s authors is to abolish the principle that establishes the priority of international law over Russian legislation (“to abolish international norms and regulations that dominate over the Constitution”). However, it is safe to say that this goal cannot be achieved by simply removing the mentions of universally recognized principles and norms of international law from Article 15, Part 4, and Article 17, Part 1.
The provisions of Article 15, Part 4, state that the universally recognized norms of international law and international treaties and agreements of the Russian Federation are component parts of its legal system. It is essential to differentiate between two kinds of international legal regulations:
- Norms established by international agreements
- Universally recognized principles and norms of international law with no mention of the source of their origin
It is important to understand that the Constitution of the Russian Federation does not recognize the priority of all international principles and norms but only of those international agreements that do not establish any regulations at odds with the ones provided by the national law. At the same time, the priority of international treaties and agreements does not affect the Constitution itself, the statutes of which take precedence over both the universally recognized principles and norms and international agreements of the Russian Federation. Consequently, removing the mention of universally recognized principles and norms from two articles of the Constitution will by no means abolish the principle of priority of international treaties and agreements over national legislation.
Moreover, the proposed changes come into conflict with other constitutional statutes. The Constitution of the Russian Federation contains numerous references to international law. For example, the preamble of the Constitution says that the people of the Russian Federation recognize themselves as part of the world community. Article 63 mentions political asylum. Article 67, Part 2, talks about the jurisdiction of the Russian Federation on the continental shelf and in the exclusive economic zone. Article 69 states that the Russian Federation guarantees the rights of its indigenous peoples. Therefore, the revision of only two articles will not clear the Constitution of those definitions that the bill’s authors are seeking to eliminate.
All in all, one can say that the bill introduced by the Russian Sovereignty group does not stand up to criticism, clearly contradicts constitutional statutes, relies on unrealizable adoption procedures, and contains a record number of all kinds of mistakes in every paragraph of the text. From the point of view of a professional lawyer, all the abovementioned facts suggest that the effort to collect enough signatures to ensure the initiative’s passage will probably fail. It seems that such a controversial piece of legislation might have appeared as a result of confusion between cause and consequences. One cannot assign a subservient role to the Constitution and change its norms every time the necessity of resolving a political issue arises. The Constitution does not aim to obstruct the effective implementation of public-sector activities; it merely defines the legal framework for social and political relations. There is no need to change the country’s basic law for partisan purposes, or to support certain moral values, or to represent the state’s interests in the international arena. It is possible to accomplish all of these ends within the existing legal framework. Would lawmakers accept that? We shall have to wait and see.
References
- Parliamentary Club, “Russian Sovereignty.” Accessed September 4, 2014.
- Commentary to the Constitution of the Russian Federation, ed. L. V. Lazarev. “New legal culture,” 2009.
