Mikhail Khodorkovsky, founder of the Open Russia movement, discusses why the Russian Constitution is “no more than a piece of paper—a sham symbol of federalism, freedom and democracy.”

 

Mikahil Khodorkovsky. Photo: Michal Dolezal / CTK / ZUMA Wire / TASS

 

December 12, Russia’s Constitution Day, was marked by the detention of one of the Constitution’s authors for organizing a peaceful protest, prompting many commentators to decry the fact that the regime is virtually ignoring the country’s Basic Law, and it’s absolutely true.

In 2015, twenty-two years after the adoption of its Constitution, Russia is once again mired in a profound constitutional crisis—one 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, Russia’s Constitution is no more than a piece of paper—a sham symbol of federalism, 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 it did, for example, when extending presidential terms), convention now doesn’t concern 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 school hostage crisis to further consolidate power, abolished gubernatorial elections in 2004. It became increasingly 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 Constitution’s coffin during Dmitry Medvedev’s presidency. 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 to 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 this, Putin stopped bothering with the Constitution, the way one might cease to bother with an elderly relative who’s finally lost her marbles. He introduced significant restrictions on freedom of assembly and the media, while also rolling back privacy provisions—all under the pretext that such measures would contribute to the fight against external (or, more rarely, internal) enemies.

Now, judging by the events of early December 2015, we can assert that the Constitution as Russia’s Basic Law has 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—particularly 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 futile.

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

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.

To see why, one must understand the fundamental causes of the current crisis: the lack of safeguards in the Constitution against its own violation; the irremovability of the regime; and the degradation of constitutional justice in Russia. 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 measure 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, that is, 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 organize 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 it 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—decentralization—is nowhere to be seen. 

It is clear that the decentralization of economic and political life is an absolute prerequisite for Russia, and that, in the absence of decentralization, a country like Russia can only develop along imperial lines. The federalization of Russia—the genuine rather than notional variety, involving the creation of a dozen or more new centers 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 its society’s resources are used to cater to people’s actual needs.

If this undertaking is to be a success, powerful political and legal stimulants must be put in 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 has taken 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 put forward a mechanism for its adoption.

This will be a long and difficult road. But the most important thing is to get moving. It’s been a year now since Open Russia began its discussion of 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 first prepare a set of urgent amendments to the text of the existing Constitution, and, second, lay the foundation of a long-term project to devise the future Constitution of a free and democratic Russia.

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

 

This op-ed was first published at khodorkovsky.com.

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