Institute of Modern Russia

• Vladimir Pastukhov’s previous essays on the topic are: “Constitutionalism vs. the Russian Matrix” and “The Hamlet Question: Autocracy or Federation?”
• We also recommend downloading IMR’s recent report entitled “Constitutional Crisis in Russia and How to Resolve It,” of which Vladimir Pastukhov is one of the co-authors.

 

Whenever the subject of a new Russian constitution comes up, its proponents’ fingers, as in a poem by Pushkin, yearn for the pen, the pen yearns for paper, and ready-made texts stream freely from all directions. Paradoxically, at a time when it is practically impossible to do anything about the construction (not the reconstruction, as many think) of a constitutional order in Russia, the Russian general public has gotten a real constitutional itch. Alternative constitutional drafts are multiplying faster than rabbits, with each new draft turning out to be more exotic and radical than the last. Furthermore, the so-called new constitutional drafts turn out to be new only on first inspection. Relative to the text of the present Constitution, they contain no substantial institutional innovations. The old contents are poured into new constitutional wineskins, and very good words replace merely good ones. All this bustle inevitably leads to a devaluation of the constitutional idea in Russia, causing more harm than good. This is a case when, to paraphrase a famous phrase in Lenin’s legacy, “it’s better longer, but better.” The problem, however, is that in Russia, everyone has their own understanding of what is “better.”

 

The Philosophy of Constitutional Minimalism

The gloomier the future of the rule of law appears in Russia, the stronger the temptation to make a big constitutional leap, solving all the accumulated problems in one stroke. So far, however, the ideology of the “great leap” has not proven worthy, either politically or economically, of the hopes that were placed in it. It is unlikely that it will be any different in the business of constitution making. A “great leap” is generally followed by a “great pullback,” which quickly nullifies the achievements of the leap, and the historic price of such a forward-backward motion proves too great. Therefore, when engaging in Russian constitutional reform, it is best to “make haste slowly.”

Obviously, at the starting point, when constitutional reforms are just beginning, society is new only as far as its intentions are concerned. It is the very people who are used to living in conditions of legal arbitrariness who will have to adopt and put into effect a new constitution. The majority of them will be ready for change in words only, while continuing to do unconstitutional deeds in their everyday lives.

It may be that the sudden introduction of an entire range of institutional reforms that must be implemented so as to change an essentially imperial state into a national one will send society into a state of constitutional shock, one with which it will be unable to cope.

This was part of the mistake made by the constitutionalists of the ’90s, who proposed a political model based on the existence of a developed civil society, which did not exist in Russia then, and does not yet exist. Naturally, this model quickly “fizzled out” and degraded, initially into an authoritarian, and then into a neototalitarian state. And this situation can reoccur endlessly, because at the start of constitutional movement, a bright constitutional future exists in intent and potential only. If the political avant-garde at such a time breaks away from its “social rearguards,” it risks flying all the way to the moon, which, as a classic of Marxism-Leninism rightfully observed, is the only place where you can be free of the society you live in.

This is why a constitutional transitional period is necessary, during which the social prerequisites for full-fledged constitutionalism must be created. Constitutional reform is not a one-time action, but a lengthy multi-tiered process, which I wrote about in my previous article. The task of the first stage is stimulatory: to facilitate the development of civil society, which is the prerequisite for the transition to the second stage of reform, that is, the completion of the development of a national “political” state.

At the first stage of constitutional reform, it is desirable to adhere to a philosophy of “constitutional minimalism,” which presupposes observing the principle of the reasonable sufficiency of proposed innovations. A balance must be observed so that the amendments to the constitution firmly impart a new vector to social development—in other words, stimulate the development of civil society, but in doing so, do not let us gasp in constitutional delight and collapse into the chaos of anarchy or civil war.

It is necessary, acting according to the logic of “necessary and sufficient” constitutional amendments, to find a golden mean between purely cosmetic changes that do not affect anything important, and the desire to change everything at once. 

We must distinguish between an impulse and overall movement. The issue of whether or not there will be a new constitution or a new version of the old constitution is a highly technical and secondary one. The answer depends, to a great extent, on how the general political situation develops and what social needs take shape. We must also remember that preparing the text of a constitution not only provides a rare insight into the political life of the country, but also requires difficult, painstaking labor over each word by professional jurists.

 

Constitutional Succession

I am often criticized for underestimating the importance of the present Constitution of 1993. This reproach is not entirely just. I considered and still consider the adoption of the Constitution of 1993 the most important landmark in the evolution of Russian constitutional ideology. Its main achievement is the recognition of the universal character of European constitutional values and the fundamental importance of the observance of human rights and freedoms. On the other hand, the adoption of the Constitution of 1993 did not, in my opinion, facilitate the establishment of a constitutional order in Russia in practice. After 1993, as prior to that date, Russia remained an authoritarian state, into whose fabric separate constitutional institutions were somewhat artificially woven. But this in no way diminishes the historical achievements of the Constitution of 1993 or its authors. And Russia can move forward only from the position attained by previous generations.

It goes without saying that the main conception of the new constitutional project must remain the hackneyed statement that all power in Russia belongs to the Russian people. What I would consider fundamentally important is an unorthodox continuation of this thought, one not in the current Constitution: the right of the people to revolt if power has been usurped—that is, if democracy has been infringed.

Considering Russian history, this statement, borrowed from the preamble to the Declaration of Independence of the United States, merits inclusion directly in the text of the Constitution.

I would not call the structure of the Constitution of 1993 ideal. It is built around the chapter on human rights and freedoms as the central idea. In my opinion, the idea of public control over the authorities should be the central one. The chapter about human rights and freedoms (brilliantly composed, by the way) could be an independent part like the Bill of Rights, but not the core element of the whole system. I would invert the pyramid of the sections of the Constitution, placing them as follows: 

– The fundamentals of the constitutional order of the Russian Federation;

– The state structure of the Russian Federation;

– Declaration of the rights of the Russian People.

But I do not consider changing the structure of the Constitution to be a fundamental issue. Without a doubt, that is where we should begin. Only if the situation calls for preparing a completely new text would it make sense to tailor the constitutional costume “to grow into,” so that in the future it would be possible to make do with individual constitutional amendments.

Something else is much more important now: filling in the constitutional gaps which permitted the Constitution of 1993 to be neutralized, and which turned it into wrapping paper for authoritarian offal.

A qualified audit of all the constitutional legal practices, which would allow us to discover their weaknesses, is of fundamental importance. In this sense, forward motion must be carried out from the antecedent, i.e., the present Constitution, by means of revealing and removing its defects—both those inherent in it and those acquired later during the numerous constitutional counter-reforms.

 

A Defect in Constitutional Protection

Remembering revolutionary slogans a century old, we can say that the only worthwhile constitution is one that can protect itself. No matter how many good things we can say about the Constitution of 1993, however delighted we are with its style—filled as it is with high-flown ideas, humanism, and a deep reflection of the themes of human rights and freedoms—we cannot but acknowledge that it was unable to protect itself, and that all of its high intentions ended up being trampled by the authoritarian boots of the authorities two decades later.

We can wring our hands over this, calling for justice, or we can try to understand how it happened. At first glance, it seems that it had little to do with the text of the Constitution itself: power proved stronger than law, and the Constitution was simply unable to stand up to it. But in fact, that is not entirely the case. The Constitution contains its own defense mechanisms, its own antivirus program, which for some reason did not work. Without claiming to know the ultimate truth, I will venture to say why.

To my mind, the drafters of the Constitution made a big mistake in the very beginning: while human rights and freedoms were described in detail in the text, its constitutional principles were worded generally and incompletely.

Some principles were laid down merely by listing them, such as the principle of separation of powers. Presumably, this is a self-evident truth that doesn’t need fleshing out; that may be the case in France, but by no means in Russia.

Some principles are scattered throughout various articles of the Constitution, making it necessary to derive them from other provisions (for example, the principle of rule of law). And other principles are not stated at all (for example, the principle of political and ideological pluralism); apparently, it was supposed that a standard interpretation of the Constitution would be enough to ensure their application.

Why is this a matter of such, pardon the pun, principle? A constitution is the most general legal document with a dual political and legal nature. It is through the constitution that law is joined to politics; the constitution is the very funnel through which political principles pass into law, in order later to be dispersed throughout the entire legal system and penetrate every aspect of its activity. In this sense, the constitution is nothing other than a tuning fork for tuning the entire political system. Contrary to widely held belief, application of laws is not a mechanical activity (otherwise all lawyers could be replaced with machines). Even 150 years ago, Marx wrote that the law is generic, but a case is specific. Applying the generic to the specific is a creative process in which millions of people guided by principles and values, including political ones, are involved. Imagine how complicated this process becomes if the tuning fork (the constitution) with which they are supposed to tune the legal system produces either muffled tones or sounds subject to multiple interpretations.

 

Constitutional Cutback

But that is only part of the problem. Besides the tuning fork, success requires a tuner—a qualified tuner with perfect political and legal pitch. The creators of the Constitution of 1993 quite rightly concluded that in Russia, typical judges could not serve as such tuners, because their ears were infected with the fungus of legal nihilism. Therefore, the Constitutional Court was created, to which persons with irreproachable legal pitch were supposed to be appointed one by one. At first, it coped with its task very well and bravely. It is sufficient to recall the epochal decision holding unconstitutional Boris Yeltsin’s decree concerning the dissolution of the first Russian parliament. But with time, this same Constitutional Court became the primary target and victim of constitutional counter-reforms, which began almost immediately after the adoption of the “most democratic of all constitutions,” rather than after Vladimir Putin’s accession to power.

The attack on the Constitutional Court was carried out simultaneously along two lines: the narrowing of its jurisdiction and the undermining of its independence.

The jurisdiction of the Constitutional Court, not the broadest to begin with, underwent substantial curtailments over the years. All substatutory regulations, and all unconstitutional decisions of public officials, were excluded from its purview. Into this black hole, a rapid stream of unconstitutional practices rushed. If we now analyze the decisions of the Russian Constitutional Court, most if not all of them appear without legal fault. The dysfunctionality of the court manifests itself primarily in a latent, passive form—through a skillful avoidance of considering the most essential disputes.

The assault on the independence of the Constitutional Court is more tangible than the secret, poorly understood cutback of its jurisdiction.

The abrogation of the custom of electing the court’s chair (formerly the chair was elected, now he is appointed) fundamentally changed his status. In addition, we must note all of the methods used to pressure other courts: the regulation of the financing of judges by officials in the presidential administration; the constant pressure by law enforcement on judges and members of their families; the de facto abandonment of the principle of lifetime appointments for judges (it has become an empty formality, because any judge can be accused and removed on a trumped-up criminal charge, and every judge knows it). All of these things over time have facilitated the adoption of constitutional self-censorship in the court, thereby removing the need for overt pressure.

Restoration of the Constitutional Court’s functionality is not so much a part of the constitutional reforms as a necessary precondition for them. Imagine how a piano would work if it were prepared for a concert by a deaf tuner with a damaged tuning fork. The recognition of this fundamental defect of the Russian Constitution is itself a huge step forward, inasmuch as it shows the way to further progress. The potential for constitutional control can be reestablished only if we have both repaired the tuning fork and cleaned the tuner’s ears.

The section “Fundamentals of the Constitutional Structure of the Russian Federation” must be redrawn so that basic constitutional principles occupy a central place in it.

They must be listed fully and clearly with clarifications to exclude their further false interpretation. This is one of the most painstaking tasks to be done, demanding a much greater intellectual investment than the simple restoration of “lost” democratic norms. The stability of the constitutional and overall legal system for decades to come will depend to a great extent on how well this work is done.

It is also essential to restore the jurisdiction of the Constitutional Court to its previous scope and even enlarge it, providing it the opportunity to decide the constitutionality not only of substatutory acts (which mainly determine the legal climate in Russia), but also of the actions or inactions of government officials. Internal judicial self-administration must, of course, be fully restored.

The relationship of the court with the presidential administration and the government concerning the financing of judges must be regulated publicly. These two modest measures of a general nature will permit substantial improvement of the application of constitutional law and prevent its repeated breakdown in the future.

A constitution is a document that is very limited in scope. Any attempt to stretch it by means of specification is futile and even harmful. In such a case, the constitution can be a brake on society’s development. But the constitution must have embedded in it basic principles and methods for their interpretation which permit reducing the most varied legal conflicts to a common constitutional denominator.

  

To be continued. 

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