Let’s Say “No” to the Erosion of the Constitution

Kremlin and Moscow Environs Aerial View

(Institute of Modern Russia – imrussia.org – Ekaterina Mishina – July 29, 2013) Russia’s leading legal experts have published an open address in which they detail the threats to the country’s constitutional order. IMR Advisor Ekaterina Mishina, a co-signatory of the address, emphasizes that, for the lawyers, to point out the dangers of the current situation is a professional, civic, and human duty.

In early July, two doctors of juridical science, ordinary professors from the National Research University­Higher School of Economics, Mikhail Krasnov and Alexander Obolonsky, prepared an address in which they warned that Russia’s constitutional structure was under threat. They sent out a draft version of the address to their inner circle of colleagues, along with a proposal for these colleagues to sign and, if possible, disseminate among lawyers who cared about what was happening in Russia and what the regime has done and is continuing to do to the country’s constitution.

The essence of the address is that the basic provisions of the Russian constitution, the twentieth anniversary of which will be lavishly celebrated in December of this year, have at this moment gained a distinctly decorative character. According to the address’ authors, the most important aspect of Russia’s constitutional form of government, as established in Article 1­the “constitutional characterization of Russia as a state of law”­is the primary casualty. I would add that the principle of separation of powers, provided by Article 10, has suffered the same unfortunate fate. In Professor Krasnov’s apt words, the Russian constitution is airy, and its wording gives lawmakers great freedom to maneuver when implementing its provisions.

It is appropriate to recall that the Russian constitutional framework was modeled after the constitution of the French Fifth Republic, which was custom-made for the charismatic General Charles de Gaulle and is often referred to in constitutional law as Caesarist, because it endows a president with truly imperial powers and sets the stage for the establishment of a personal power regime. And since the Russian constitution establishes such a system de jure, then one must wonder what is going on de facto? According to every letter of the Russian constitution, the Russian president is not part of any branch of government; instead, he hovers over the system. He hovers, and at the same time, he defines the main directions of domestic and foreign policy (Article 80, Part 3). This is not consistent with the principle of separation of powers. And the more he hovers, the more this hovering resembles not the serene flight of a white crane but the upward soar of a huge predatory bird that throws a long black shadow over the system of separation of powers and the rights and freedoms of citizens.

The address’ authors express clearly defined and well-founded doubts about “whether it is possible to speak about the legal nature of the state in the conditions of the clear war between the public authorities and civil society that is emerging in the country.” And we – all­ those who have signed this address and those who have yet to sign it­ – have a fully formed “sense of the coordinated actions of virtually all public power institutions” against civil society. But how else can the situation in which nonprofit organizations find themselves now be considered? These organizations have done so much for the country since the 1990s, when NGOs did not yet bear such heavy legislative shackles. It was not easy for them to do that. And the anti-NGO measures were implemented with a nod to America, because Russia has, for many decades, been in a constant competition with the United States. That is why the Russian state-owned media constantly repeat the assertion that the amended Russian law “On Nongovernmental Organizations” is much better and more humane than the U.S. Foreign Agents Registration Act of 1938 (FARA). But they do not explain why the Russian legislation regulating the activities of “foreign agents” is so superior to the American legislation. Apparently, they do not explain this claim because such an explanation is unnecessary, in accordance with the well-known Communist principle: “Marxist doctrine is omnipotent because it is true.”

The next thesis that the authors of the address advance is that “the legislative work of parliament has acquired a distinct prohibitive and repressive character.” Professors Krasnov and Obolonsky are polite people: they refer to the activities of the so-called Russian parliament, an organization that is not a place for political discussion, as “legislative work.” I, however, was not brought up as properly as they were, which is why I say with a Bolshevik’s directness: a parliament is a special place in which lawyers, economists, sociologists, and historians elected by the voters’ free will meet. The current State Duma, which consists of athletes, cultural figures, and various former officials who do not bother to develop the laws they draw up and pass all bills that the president and the federal government bring to them, does not, in my humble opinion, look like a parliament. Nor can what these people are doing really be called “legislative work” (again, judging by the products they issue). And I do not come to these conclusions only because of the prohibitive and repressive nature of the legislation they have adopted. Over the past roughly 10 years, the quality of Russian laws has greatly declined. This decline is not just a question of technical legal errors. A huge amount of laws and bills that are still under consideration by the Duma contain serious violations of the provisions of the Constitution of the Russian Federation. Do not believe me? Be curious. Go to the Duma’s website. Entertaining reading. Just please, dear reader, make sure to have enough anti-anxiety drugs, along with sleeping pills, on hand. And if you are a person with imagination, be warned­you may not be able to sleep at night for thinking about the prospects for the future.

The address includes yet another key argument: “Law enforcement and intelligence agencies­the Investigation Committee, the police, the FSB, the prosecutor’s office­rudely, sometimes deliberately and cynically violate constitutional and other legal provisions, including by fabricating criminal and administrative cases against those who criticize the authorities.” There are so many examples to bear out this claim that just thinking about where to start would make you dizzy. One of the most fresh and vivid in my mind is the so-called “experts case.” The best legal professionals in the country, acting strictly within the law and at the request of the President’s Council on Human Rights, conducted an independent examination of the second Khodorkovsky­Lebedev trial. In return, they received the fullest appreciation of their country­in the form of searches, seizures of emails, and summons for questioning by the Investigation Committee.

Calling the courts the only authority where citizens can expect to receive protection for their rights, Krasnov and Obolonsky draw attention to the fact that “the courts ‘legalize’ these violations, making unjust convictions based on one-sided, and even falsified evidence.” I agree with this contention, as well as with their claim that the authorities are increasingly “strengthening an anti-legal tradition, expressed in the formula ‘might is always right.’ In its true meaning, the law is disappearing before our eyes . . . because one of the unshakable foundations of law­the equality of all before the law and the courts­has been violated. At the same time, the institutions that were designed to protect and defend rights are eroding.” The catastrophically low level of legal culture in Russia exists in a society where disrespect for the law has long been revered as a sign of good taste. When this situation is compounded by the entrenched Soviet-era neglect for basic human and civil rights and a lack of respect for others’ property, you can see a scary picture­comparable to those drawn by Bosch or Goya’s Capriccios.

Fully sharing the view of the address’ authors, I also consider it my professional, civic, and human duty to point out the country’s current dangerous situation. Because of their professional activities, lawyers are well acquainted with the details of the constitution. Maybe that is why it is even scarier and more painful for us to see how distorted the provisions of Russia’s basic law have become. The text of the collective address, of which I have the honor to be a co-signatory, is published here. And we believe that a lot of like-minded people will be willing to add their signatures to our address.

Article also appeared at http://imrussia.org/en/rule-of-law/520-lets-say-no-to-the-erosion-of-the-constitution bearing the following notice:

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