Mikhail Saltykov-Schedrin

 

For many years, the sturgeon lovers outnumbered the Russians who wanted a new constitution. For this reason, it was especially exciting to find that a draft for a new constitution that appeared in March of 2012 is a thorough and well-reasoned document detailing how the constitution that is currently in force should be modified.What’s even more heartening about this draft is that it was made with the active participation of students.

There are many extraordinarily bright and well-read students at the Law School of the National Research University Higher School of Economics (HSE). Some of them even take the trouble to think, and that's even better, since oftentimes, even really bright people refrain from thinking. When one starts to think, it's proof that they’re not apathetic to the world around them. Under the best of circumstances, the young and engaged work alongside older, wiser and even more invested adults. Occasionally, this kind of collaboration can bring about nearly perfect results. One year ago, a group of students started working with Professor Mikhail Krasnov, head of the HSE Department of Constitutional and Municipal Law, and Assistant Professor Svetlana Vassilyeva, also a constitutional law expert, on developing a draft for a new Russian Constitution. In the middle of March 2012, this draft became the subject of expert analysis and debate.

The authors state that the inspiration for their work is the acknowledgement of the need for change in the existing system of political institutions in Russia. They believe that the current system allows for the proliferation of a personal rule regime—or as Professor Krasnov has put it, a personalistic regime. The current regime undermines and sometimes effectively destroys political competition. It also creates grounds for stagnation in the fundamental governmental institutions, an overly powerful bureaucracy, and corruption.

The draft produced at HSE is consistent with previous critiques of the current constitution from Professor Krasnov. In various publications, he has emphasized that he does not advocate changing the form of government in Russia. According to Krasnov, neither the presidential nor parliamentary systems will work for our country. The presidential republic is considered unsuitable by the elites in Russian politics because it does not provide the President with the power to dissolve the lower chamber of the parliament.  As for a parliamentary republic, the idea of the supremacy of the parliament is alien to Russians, and thus, it cannot take root here.

The draft of the new Constitution of Russia is based on the existing semi-presidential system, but its purpose is different. It seeks to transform the role of the president, envisaging the office as less politically influential. In this draft, the presidential office is deprived of a number of powers while also being vested with a handful of new functions. The fearless authors take the risk of challenging one of the most valuable prerogatives of the Russian president by envisaging just one presidential term. They offer this change as a way of positioning the president as the guardian of the constitutional system instead of a political actor. Because a single-term president will be relieved of the pressures of campaigning, they will be able to fully concentrate on performing their basic functions. This will be provided for by the Parliament will gaining importance in the political system, first of all, by increasing its number of control functions.

Along with retaining the basic French-model semi-presidential system, the authors draw from American experience. The upper chamber of the Russian Federal Parliament is called the Senate, and senatorial elections would be administered almost the same way they are in the United States.

The judicial system is another area that demonstrates the considerable influence of the American system. Part 1 of Article 77 of the draft states that the judicial system of Russia will include the federal and the regional courts (i.e. state courts). The existing system of arbirtazh courts would finally be abolished from the judiciary branch, which sounds like a great idea. The typically Soviet arbitrazh courts, which are commercial arbitration courts administered by the state, do not exist anywhere else in the world. The project also envisages the creation of new administrative and financial courts as well as a Higher Disciplinary Court. The latter will consider disciplinary cases and cases of the breach of judicial ethics committed by federal and regional judges. This court would be entitled to deprive such federal or regional judges of their powers (Article 79, Part 7).

The authors came up with a number of changes in the existing procedures for obtaining a position in the judiciary. These include the following:

•    The requirements for taking up a position in judiciary are to become more strict overall;

•    Justices of the peace will be elected by the people;

•    The existing practice of nominating court chairpersons will end. Court chairpersons will be elected for short terms by the judges of a court, provided that every judge of the court in question will have a chance to become a chairperson. The vast range of powers currently vested in court chairpersons which allow them to influence judges and thus create a serious  threat to their decisional independence will be abolished;

•    All federal judges except the judges of the higher federal courts will be appointed by an ad hoc founded agency named the Federal Committee for Judicial Affairs.  The members of this Committee will be the President of Russia, three senators, the Minister of Justice, three representatives of the Russian Bar Association and three prominent academic lawyers who are full Professors with recognized expertise in the area of judicial studies;

•    Regional judges save for the justices of the peace will be appointed by the regional legislatures.

The innovations in the realm of federative relations have been developed with the active recognition of German experience. Both Russia and Germany are asymmetric federations, but the way they are structured isn’t similar. The basic difference is rooted in the fact that in Russia, over the course of the past decade, the spirit of federalism as a fundamental constitutional principle has started to vanish. In light of this, the draft under discussion contains proposals that aim to bring the federal structure envisaged in the Russian Constitution in compliance with the relations between the federation and the regions that exist de facto. The competence of the regions has been made considerably broader, especially in the realm of their exclusive legislative areas of competence. The regions will have the authority to pass on their own criminal legislation, and to create regional police forces and judicial systems.

 

From left to right: Svetlana Vassiliyeva, Assistant Professor in the HSE Department of Constitutional and Municipal Law, and the members of the Prism Debate Club

 

Other indisputable advantages of the draft include:

•    The authors propose to incorporate the legal grounds for the activities of the political opposition into the text of the Constitution, including basic guarantees of freedom of opposition activity in the Parliament. These innovations would also ensure that the views of the opposition would actually be taken into account (Article 8). Such legislature has no precedent in the history of Russia;

•    Considerable changes affecting electoral rules and procedures — adding the option ‘None of the above’ to ballots; increasing the number of votes necessary to make elections valid to 30 % the population eligible to vote; prohibiting absentee voting certificates. In order to get into the parliament, a political party must obtain no less than 3 % of votes (Article 67).

•    A new procedure regulating the formation of electoral commissions. This function will be in the competence of the Constitutional Court of Russia and regional constitutional courts;

•    Federal court districts will not coincide with the borders of the regions of the Russian Federation. Regional court districts will not coincide with the borders of the administrative-territorial units of the region in question (Article 77);

•    Chairmen and Deputy Chairpersons of the Constitutional Court of Russia will be elected by the Justices of the Constitutional Court for one term only (Article 78);

•    There will be a considerable increase in the number of years of legal practice required for all candidates for judicial office with the exception of justices of the peace (Article 83);

Unfortunately, nothing is perfect in this world, and this good draft also contains certain controversial issues. Here are some of them:

•    The prohibition of dual citizenship (Article 5, Part 3);

•    Court judgments (both federal and regional) are not to constitute a source of law (Articles 13 and 14);

•    A prohibition from vote is envisaged for those who haven't completed a high school program; for civil and municipal servants; government and municipal officials; conscripted and professional soldiers; as well as individuals subject to court-imposed sentences other than fines (Article 65).

It is clear that this document will never become the fundamental law of Russia. However, the simple fact of its existence is a sign that there is room for constructive disagreement with the current law. Such attempts do not go unremembered. In 19th century, when the protesting Decembrists came to the Senate Square in St. Petersburg, they knew that they wouldn’t be able to overthrow the rule of Emperor Nicholas I of Russia. Nonetheless, the Decembrists were not only protesting the regime, they also had constitutional drafts at hand—one of them developed by Nikita Muraviev and the other by Pavel Pestel. These drafts allow us to understand what the Decembrists had wanted in place of the Tsarist regime. Creating a thoughtful, elaborated, and well-reasoned alternative is much more complicated than simply stating one’s oppostion. Above all else, Mikhail Krasnov, Svetlana Vassilyeva, and their students rose to that challenge.