A New Constitution for Russia

By Peter Pavilionis, Journal of Democracy. The Eurasia Center. Washington D.C.

A New Constitution for Russia

Peter Pavilionis

I. Russia's James Madison

Oleg Rumyantsev has not yet entered the ranks of public figures whose names are frequently mentioned when discussing the historic political changes taking place in the Soviet Union.

Yet, despite his lack of political celebrity status, Rumyantsev figures prominently among the widening circle of democrats in the Russian Soviet Federated Socialist Republic (RSFSR) who are perforce laying the groundwork for the Republic's entry into the world community as a sovereign, democratic nation. Rumyantsev has spearheaded the effort to write and ratify the first truly democratic constitution for the Republic.

Hailed as "the Republic's James Madison" in a recent Washington Post article, Rumyantsev first entered the fray of Russia's fledgling democratic politics at the first RSFSR Congress of People's Deputies, whose members were chosen in partially free elections in March 1990. As a People's Deputy, Rumyantsev captured the attention of Russia's newly chosen president Boris Yeltsin, who tapped Rumyantsev's expertise in drafting the Republic's June 12 Declaration of Sovereignty. Shortly thereafter, Yeltsin again selected Rumyantsev to chair the newly created Constitutional Commission for the Congress.

Rumyantsev began his career as a researcher in Moscow's Institute of Economics of the World Socialist System, headed by Oleg Bogomolov, a reform-minded and influential contemporary of Gorbachev, whose generation identified with the types of reforms inaugurated by Khrushchev in the wake of de-Stalinization during the late-1950s and early 1960s. Bogomolov not only served as an early mentor for Rumyantsev, but also facilitated meetings of Rumyantsev's discussion group, Democratic Perestroika - one of Moscow's many such small, informal political discussion groups - when the local authorities denied permission for public meetings. Some of the Democratic Perestroika members who were elected along with Rumyantsev to the Republic's Congress helped in the drafting of the new constitution. Rumyantsev also solicited the advice of many specialists in the United States, including legal expert Bruce Fein, and constitutional scholar Albert Blaustein, who has earned the nickname "the Johnny Appleseed of constitutions" for his expertise in developing and revising constitutions for foreign governments and democratic leaders abroad.

The result is a massive document, totalling nearly 140 pages and covering practically every salient right and responsibility coming under the rubric of a "social contract." Indeed, in reading the constitution, one cannot help but be impressed by the document's scope. Unlike familiar Western constitutions, which proscribe and define the limits and responsibilities of the state's power, the new Russian constitution proceeds with two weighty sections encompassing the rights, duties, and - for lack of a better term - suggested roles of the individual in the new society envisioned by the drafters of the new fundamental law.

II. The New Russian "Bill of Rights"

Section II - what could be called the Russian "Bill of Rights" - enshrines the basic freedoms expected in any enduring democratic constitution: speech, assembly, press, religious observance. But while the definition of rights and guarantees of individual freedoms of practically every constitution reflect a fundamental rejection of the old order, the new Russian constitution is remarkable in its unambiguous repudiation of the citizen's subservient role in a totalitarian political system. Indeed, the new constitution reads more like a desideratum against all the injustices of the past 73 years of communist domination. The very order in which this section appears in the constitution is a testament to the primacy of personal autonomy and the Western political ideal of the individual as the repository of inalienable natural rights. "We have deliberately placed the section on individual freedoms ahead of the section that deals with the structure of the state, thereby breaking with the longstanding tradition of the subservience of the individual to the mighty dragon of the state," writes Rumyantsev in a recent article published in the Journal of Democracy. "It is not a matter of the state granting rights to the individual, but of the individual rationally and responsibly exercising the unalienable rights and liberties with which he is endowed by nature itself."

The Russian "Bill of Rights" takes an expansive view of these unalienable rights - as well as those who are entitled to exercise these rights - guaranteeing equal rights "regardless of nationality, social origin, status with regard to property, official position, place of residence, language, race, attitude toward religion, political and other beliefs, and party affiliation as well as the fact of having served a sentence for a criminal act."

Protection against unlawful detention, search and seizure, and punishment are guaranteed in Section II as are violations of privacy in "correspondence, telephone conversation, and telegraphic and other communications." Moreover, citizens living under the new constitution may "freely obtain, store, and disseminate any information, using any means and regardless of state boundaries." The draft constitution grants both unrestricted freedom of movement and of national self-determination - "the right to define [an individual's] national affiliation on the basis of his ethnic self-awareness and feeling, and the right to state his national self-determination ... (or to abstain from such a statement)."

The Russian "Bill of Rights" also contains a significant state-welfare component, guaranteeing citizens the right to medical care, primary and secondary education, and financial security for the elderly. All citizens are given equal rights to state employment under the new constitution, and several sections are devoted to labor, wage and workplace rights. Forced labor is prohibited under the draft constitution.

Not unexpectedly, a considerable portion of Section II addresses legal rights under the new constitution. Drawing heavily from Western notions of judicial protections, Russia's draft fundamental law establishes due process; the appellate procedure; protection against self-incrimination, double jeopardy, ex post facto laws; and the right to skilled legal representation provided by the state. To guard against any possible state encroachments on citizens' rights, the new constitution calls for the creation of the office of a Supreme Defender of Rights, appointed by and accountable to the new Federation's legislature.

The most salient provision in the constitution's "Bill of Rights," however, guarantees citizens the right "to participate in the management of societal and state affairs, both directly and through their freely elected representatives." This is, perhaps, the quintessential article of the proposed fundamental law, for it is here that one finds the elements of a radically restructured social contract where the Federation's citizens can, for the first time in its history, actively participate in forging a true government by consent. "Such participation," according to this article, "is provided through the development of spontaneous social activities and self-government, through the holding of regional and national referendums, and through the democratically established organs of state power under broad public supervision."

III. The Civil Society

But the draft fundamental law goes far beyond the mere affirmation of its citizens' newfound rights. In fact, the section following the extensive "Bill of Rights" is an even more ambitious attempt to convey a sense of legitimacy and guidance to reinvigorated, autonomous social institutions that have atrophied after so many years of Communist mobilization, supervision and control. In a sense, these institutions - the pillars of any modem industrial society: property relations, labor, religion, informal associations, and the family - will achieve their "awakenings" with the passage of the new constitution, and will obviously be in dire need of some sort of tutelage on how to adjust to a society now offering so many choices and freedoms. Section III of the draft constitution attempts such an undertaking.

Lest anyone think this oversteps the traditional boundaries of what a constitution ought to address, it should be kept in mind that the drafters of Russia's new constitution are attempting nothing short of outlining all of the norms, values and roles inherent in a civil society - where none existed before. "We are not engaging in high-flown discourse," writes Rumyantsev in the Journal of Democracy, "but making a deliberate proposal to restore the traditions of civil society to Russia. . . . The intent of the new Fundamental Law is to legalize the institutions and relations of civil society in order to provide for their genuine and healthy development." Rumyantsev acknowledges the fact that no other constitution addresses the composition of a civil society, and reaffirms his belief that the lofty principles and philosophical orientations underlying the foundation of Western constitutions can and should be reified in the Russian case. "Civil society should be regarded as a legal concept, not just a philosophical one," according to Rumyantsev.

A goodly portion of this section concerns itself with issues of economic enterprise, entrepreneurship, private property and the like. This is not surprising given the persistent crises arising from the saturnine state of the Soviet economy and an equal number of economic reform proposals whose heyday seems to have passed rather unceremoniously. Under Section Ï1 of the draft constitution, the right to individual or joint ownership of private property is guaranteed. "Property is inviolable," begins one of the many articles in Section III on property rights. "The forced alienation of property for reasons of public necessity, suitably substantiated and proven, is allowed only under the conditions and according to the procedures established by law, with just and full compensation."

Trade union autonomy is also given constitutional protection. The formation of independent trade unions is protected as is the right to strike. The right to enterprise, defined in the constitution as "independent economic activities with a view to obtaining a profit" is recognized. Contracts are recognized as the sole instrument regulating relations among factories and entrepreneurs. "Administrative coercion for the purpose of forcing compromise is prohibited," according to the draft constitution.

The constitution contains its own anti-trust provisions, prohibiting "monopolistic activities . . . which constitute misuse of a dominant market situation." One wonders whether this clause pertains to rejection of state control over production and supply or whether it is a hedge against unbridled capitalist fervor in the years to come, since joint-ventures with foreign firms are also recognized in the draft constitution.

Perhaps the most interesting series of articles in the section of the proposed fundamental law concerns the family. No fewer than eight separate articles spell out the rights, duties and obligations of matrimony, parenthood and family relations. "The family is the fundamental and natural social unit, and comes under protection of the law," states one of the articles. "Society and the state protect the family, motherhood and children."

In a similar vein, the constitution describes the purpose and nature of education in a civil society, and guarantees the right to free and accessible primary and secondary education as well as the right of educational institutions to maintain their autonomy and a secular curriculum.

Casting aside the intellectual shackles of "socialist realism" the constitution enshrines the principle of creative and cultural freedom of expression, and calls upon the state to "assist in the dissemination of the achievements of culture and science. . . ." Intellectual property is protected under the constitution as is the right to form independent cultural and scientific establishments. The mass media also comes under the constitution's domain. Censorship as well as monopolization of the mass media by the state, public associations, political parties or other groups, is prohibited and private (non-state) media groups receive the same protections as do state media.

The concluding articles in Section III pertain to procedures governing the formation, registration, financing and accountability of political parties and associations as defined by law. The new Federation's High Court will be responsible for ruling on the "unconstitutional character" of party activities, including "laws or other state acts or actions pursued by state organs leading toward the creation of a one-party political system," according to the draft constitution.

IV. Federalism and the Federation

Perhaps the most daunting task before the RSFSR's Constitutional Commission was Grafting the new Federation's federal character as outlined in the draft constitution. To be sure, the true test of the draft constitution's mettle will be its acceptability to the leaders of the increasing number of autonomous republics, oblasts, and okrugs - each containing its own distinct ethnic nationality - that are proclaiming their sovereignty with a rapacity that simultaneously confirms and confounds the popular mandate of Rumyantsev and his constitutional colleagues.

There are now approximately 15 nominally autonomous territories within the RSFSR presently striving to break free of Moscow's administrative grip; and while the demands of the Komi, Tartars, Kalmyks, Buryats, and Bashkirs are somewhat dwarfed by the protests and carnage witnessed in the Baltics, Georgia, and other republics, the sum of all these autonomous enclaves poses a distinct challenge to any fundamental law which seeks to unify all the peoples within the Federation. Witness the bloody example of Christian Armenians in Nagorno-Karabakh, an autonomous oblast in the predominantly Muslim republic of Azerbaijan.

Section IV of the draft constitution responds to the secessionist impulses of these ethnic territories in a pre-emptive fashion by being fluid enough to allow a massive redrawing of borders along ethnic lines, yet retaining enough of a semblance of procedural and administrative detail to ensure a contiguous expanse of a reconstituted Russian Federation.

There would be two types of territories within the new Federation: republics and federal territories, the former in charge of their own internal affairs and operating under their own constitutions (as long as they do not conflict with the Federation's constitution), and the latter coming under the direct administration of the new federal government.

The draft constitution is extraordinarily flexible in allowing every possible combination of gerrymandering de novo. Thus, under Article 4.1.5 of the draft constitution: "(a) one republic may be divided into several republics; (b) several republics and federal territories may be united within a single republic; (c) one of the parts of a republic may secede; (d) contiguous parts of a republic may secede as a separate republic or federal territory."

Under the federal government's exclusive jurisdiction are such powers as granting citizenship; "legal regulations governing the system of ownership and the procedures for the management of the land, below-ground resources, natural energy resources, and air and water"; "measures ensuring the unity of the all-Russian market"; interstate contracts, obligations and transactions; currency and monetary circulation; the federal budget; socioeconomic development of the federal territories; the federal energy system, including nuclear energy; defense and weapons production; as well as foreign policy, interstate relations, federal transportation, defense, customs, activities in space - in short, all the powers one would expect to fall under the purview of a federal government.

Areas subject to joint jurisdiction of the republics and the federal government would include economic law and economic activities not under the exclusive jurisdiction of the Federation, science and culture, health care and social security, interrepublican relations as well as relations with foreign states and interstate organizations, and environmental protection.

The draft fundamental law goes to great lengths to avoid a potential balkanization of the new Federation by constructing an explicitly defined federalism that devolves enough power to the republics for them to manage effectively their own wealth/welfare issues, cultural and religious affairs, and economic development. And yet the constitution's notion of the new federalism allows the federal government to retain enough power to provide the integument of a cohesive and fully integrated federation. At a glance, these new powers seem to satisfy necessary conditions for forging a workable social contract in the new Federation, but are they sufficient? A brief examination of the Soviet principle of federalism may help in understanding what is behind the recent spate of demands for sovereignty proclaimed by Union republics and autonomous territories, and how the draft Russian constitution seeks to rectify the deficiencies in this definition of federalism.

The Soviet Union has managed to control its ethnic nationalities under a rather one-sided concept of federalism since the formation of the Union in 1922. Quite unlike classical Western notions of federalism, which strike a balance of power and responsibilities between center and periphery, the Soviet version of federalism denies the Union's constituent republics the crucial element of sovereignty in handling their own political, social and economic affairs. The republics' constitutions are carbon copies of the USSR Constitution and there is little difference in republican versions of all-Union legislation drafted in Moscow. Gorbachev's recent policy innovation now gives the republics' leaders enough leeway to adapt all-Union legislation to the unique social and economic contours of the republic; but the fact remains that Moscow still controls the distribution of resources among and within the republics.

Does Russia's draft constitution satisfy the demands for a redefinition of the federal principle to include genuine sovereignty, and autonomy for the new Federation's republics? Again, Russia's draft fundamental law seems to provide the necessary guarantees for the existence and operation of sovereign republican governments, but are these guarantees sufficient to bring republics into a Federation which is governed by consent? In this regard, two major issues stand out.

The first falls under the areas of jurisdiction exercised by the new federal government and the Federation's new republics. Unlike Union republics, autonomous territories in the RSFSR are not considered "sovereign" entities; but this has not prevented them from joining the bandwagon of recent sovereignty declarations. Little is known about the details of these declarations (except for the Tartar Autonomous Soviet Socialist Republic), but they all seem to share one salient demand: an exclusive right to the natural resources within their territorial domain. Sovereignty declarations issued by Union republics and autonomous territories are supported by their leaders' new political agendas; and while the draft Russian constitution clearly goes beyond the inchoate Soviet concept of federalism, the likelihood that these new agendas will become even more expansive and volatile could very well be a cause for rejecting any fundamental law that seeks to impose any sort of federal or joint jurisdiction over the natural resources of these territories.

The second issue concerns the redrawing of borders under the new constitution. At a minimum, one should expect a reaffirmation of borders claimed by the RSFSR's autonomous territories as they become the Federation's new republics. But if the constitution allows this much flexibility in changing borders, why shouldn't one expect the new republics' leaders to employ a maximalist approach in carving out territory once the draft constitution comes into legal force? Whether it stems from gerrymandering, irredentism, or a grab for adjacent natural resources, one could easily envision an expansion of borders beyond their present confines.

The expansion of borders does not necessarily pose a serious challenge to the new social contract of the draft constitution. It should be kept in mind, however, that the myriad ethnic groups seeking to affirm new borders will be in competition with the titular nationality of the Republic - ethnic Russians - whose already vastly superior numbers may swell due to in-migration from other Union republics. Compounding this demographic challenge is the increasingly vocal strain of Russian nationalism, whose sources of national identity and pride coincide with areas of the Republic rich in natural resources. In the redrawing of borders, how will these historical claims be settled? Will preference be given to ethnic Russians in staking a claim to Lake Baikal, the Volga Basin, and Siberia? In all likelihood, there are bound to be prolonged and bitter disputes over redrawing or reaffirming borders if and when the draft constitution enters legal force.

V. Alternative Governments

The most challenging effort in creating a democratic constitution in the wake of a communist political system is how to go about Grafting the provisions for governmental structures which seek some sort of equipoise between accountability and effectiveness.

Accordingly, Section V of the draft constitution - "The System of State Rule" - contains alternate proposals for all three branches of government.

Regarding the future executive branch, "Variant A" proposes a semi-presidential republic where a popularly elected president is head of state, but the government is responsible to a bicameral legislature. The government (Council of Ministers) would be subject to a vote of no-confidence.

"Variant B" envisions a presidential republic wherein a popularly-elected president is vested with the powers of both head of state and government.

The legislature (State Duma) would be bicameral, consisting of a Chamber of People's Deputies and a Federal Council. The Chamber of People's deputies would be elected according to a uniform standard of representation by the Federation's citizenry. The Federal Council would consist of an equal number of members from the Federation's republics and federal territories. There are alternate versions of who would elect members of the Federal Council, pitting popular election against one amongst the legislators in the republics and federal territories.

Legislative elections are also subject to more deliberation in the Constitutional Committee as the members have put forward alternate versions of deciding elections by majoritarian rule or by proportional representation.

VI. Ultimate Hurdle

Even if the wrangling over the many alternate clauses within the draft constitution reaches a consensus on the substance of Russia's new fundamental law, one paramount procedural matter will remain to cast a pall over prospects for formally inaugurating this new democratic experiment: Who will give the constitution legal force?

Despite his popularity as chairman of the Republic's Supreme Soviet, Yeltsin cannot yet marshall enough votes to place the constitution on the agenda of the Republic's legislature, which still counts among its members enough hard-line Communists and wavering legislators to obstruct an attempt to have the constitution considered. The constitution also fell short of the required votes for consideration at the second RSFSR Congress of People's Deputies, nor could it garner enough votes to be included as an additional item on the March 17 union referendum for the Republic. The alternative is to hold a separate referendum for the constitution itself, which requires collecting one million signatures from the Republic's citizens; at this time such a massive effort is beyond the organizational capabilities of Russia's fledgling democrats.

While it is uncertain what strategy the constitution's supporters will pursue for its ratification, it is clear that it will have to wait for the time being. Russia's beleaguered democrats have so many other pressing issues on their rapidly expanding agenda that require immediate action before they can again address the Constitution's ratification.

 

Peter Pavilionis is the managing editor of the Journal of Democracy. His research interests are in Soviet nationalities and environmental issues.

 

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