After Vladimir Putin stated that the voting day on amendments to the Constitution would be postponed, the Kremlin specified both dates expected: May 27 or June 3. However, neither of the two is final. Besides, the date is still not the key point in the story.
In fact, the possible date of voting on amendments and their automatic adoption is not really something to focus on. According to some lawyers, the current situation looks like a paradox: the government encroached on the Constitution, and then it is calling people to vote for this very Constitution. As Aleksander Yermolenko, a partner of the FBK Legal law firm, told wek.ru, the amendments to the Constitution may be already applied without involving the residents in this process.
“As a matter of fact, the formal order of changing and making amendments to the Constitution has already entered into force as it was approved by the Federal Assembly and the constituent regions of the Federation (Article 136, Chapter 9 – ed. note,)” says Yermolenko. “The same applies to its new version with all the amendments. It is written in the Constitution itself. That is, if the Parliament and the regions have approved them, there is no need for approval by the Constitutional Court and, moreover, for a nationwide vote.”
According to Yermolenko, this freedom of interpretation devalues the Constitution in people’s minds and makes it “a bargaining chip” in a momentary political game.
Other lawyers share this viewpoint. For instance, Dmitry Chekulayev, Candidate of Juridical Sciences and a lawyer at the Ulishchenko and Partners Moscow Bar Association, also does not understand the practical side of the amendments.
“First of all, it should be noted that the Constitution as the Basic Law of the country is closely connected with politics. It defines the frameworks of public and state life in the country,” Chekulaev told wek.ru. “In the opinion of German philosopher Ferdinand Lassalle, the Constitution should be amended in accordance with the social relations that have changed over time and require legislative consolidation. That is, it should not be changed “much and often.”
In my opinion, there is no need to adopt these extensive amendments (the 67 page text) at the moment. In 1993, the Constitution was adopted as a result of significant social and state shifts in our country after the collapse of the USSR. At present, there are no changes of this kind. Therefore, there is no need to change the Constitution.”
Lawyer Sergei Nikolaev made a more radical remark on the issue, saying: “There is no need to adopt amendments. The overwhelming majority of amendments to the Constitution have been rewritten from the laws that already existing. For example, Article 119 of the new version of Constitution corresponds to Article 4 of the Federal Law On the Status of Judges. For some reason, the Constitution did not specify that a judge should not be registered with psychoneurologic and narcological outpatient clinics. However, this prohibition is more important for the administering of justice than the prohibition to keep money in foreign banks.
Similarly, Part 1 of Article 129 has been rewritten from the Law On Prosecutor's Office into the Constitution.
There are a lot of declarative amendments. For instance, Clause “h” of Part 1 of Article 72 on preservation and strengthening of public health. What is the “public health?” Or take, for example, Article 75-1 titled ‘Conditions for mutual trust between the state and society.’ Is the state opposed to society? Where is an individual as the supreme value according to Article 2 of the same Constitution? Is he or she in the state, in society or by himself or herself?
There is another example: “economic, political and social solidarity is guaranteed” by the Constitution. Solidarity is unity. Does that mean that the state will use the repressive mechanisms of enforcement to ensure economic solidarity? Will requisitions and confiscations be in effect? We will take away something from Vladimir Yevtushenkov and Michael Calvey, and give it to people who need it? Have they created the National Guard of Russia (Rosgvardiya) for political solidarity? Social solidarity is Communism in its primitive sense. Everybody stands in one queue to the district therapist, goes to work by busses and lives in prefabricated apartment blocks.
An amendment was added to Part 2 Article 80: the President supports civil peace and harmony in the country. This statement is absolutely abstract.
Article 68 says that the Russian language is the language of the state-forming ethnos. The official name of the state says that it is “a federation,” that is, an association. Are the Russians the state-forming people? By what criteria? In this case, who are the others? Are they the ethnic minorities? By the way, Comrade Stalin also considered himself “Russian.”
At the same time, all the lawyers interviewed believe that the Constitution adopted in 1993 is sufficient for our country. Perhaps, it is for the first time in the history of constitutional law in Russia.
In general, the long-suffering Russian Constitution actually appeared in the Russian Empire at the very beginning of the 20th century. In the whole 19th century, there were only talks about the necessity to adopt at least some Constitution since the country is positioning itself as a European power.
“I was at home. As always, I didn't know what to do with myself. I wanted something: either the Constitution, or the flesh of stellate sturgeon with horse-radish, or someone to rip off,” Mikhail Saltykov-Shchedrin, a noted Russian satirist of the 19th century, described the social state. “Firstly, to rip someone off, flashed through my head, to rip off and to go to ground. And then, after proving one’s loyalty, one can dream about Constitutions at one’s leisure... about Russian liberalism.”
That is exactly the point. At the time, they only dreamed about Russian liberalism. The reality kept making its tough adjustments, which the government constantly referred to. There were plenty of other things to worry about apart from the Constitution – Napoleon's wars, the Decembrists, and serfdom which contradicted the standards of the Constitution. But there was no living without serfdom. How may one defy established customs?
As a matter of fact, the desire to adopt a Constitution and the rebuffing of desire led to the ultimate consequences. In a nutshell, the liberation of the peasants in 1861 led to the emergence of many pro-revolutionary organizations in the second half of the century. In general, they consisted of “liberated” peasants who were left without allotments of land and did not find themselves in cities. Many of them emerged as a response to the absence of the Constitution. This was followed by a reaction from the authorities. In 1906, this peculiar “dialogue” between people and the authorities ended, when the Manifesto On Improvement of the State Order of Nicholas II (Nikolai II Alexandrovich Romanov) was published. After that, either because of it or accidentally, three Russian revolutions took place one after another. These facts speak for themselves.
In 1918, when the Bolsheviks came to power, the Constitution was adopted eventually in their typical manner – without any delays. Notably, they developed it “for themselves.” That is, they declared the legitimacy of segregation of people by birth and class struggle. In addition, the Constitution predictably abolished private ownership of land and fixed assets, and all power was transferred to the Soviets.
In 1924, a new Constitution was adopted. Later, it was called the “Lenin’s” one. However, without changing the basic principles of the first Constitution, it was less “bloodthirsty” in relation to the “class of the exploiters.” It differs by the fact that it was created for the formation of the Soviet Union. All the powers and competences of the central and republican authorities were prescribed. Primarily, those of the Russian Soviet Federative Socialist Republic.
Counterintuitively, the “Stalin’s” Constitution of 1936 mentioned the rights and freedoms of a citizen for the first time. It included the right to vote, the right to work and rest, pension provision, the privacy of correspondence and inviolability of a person, freedom of conscience, speech, press, meetings and rallies.
The basics of a socialist economy were also defined. It is a different question if the provisions of that Constitution were implemented. However, they were written.
On an analogy with the previous editions, the Basic Law adopted in 1977 was called “Brezhnev’s” Constitution. It was adjusted for “full-fledged socialism.” According to the government, by then, it had been achieved throughout the one-sixth of the land surface of the Earth. The introduction of Article 6 on the leading role of the Communist Party was its distinctive feature: “The Communist Party of the Soviet Union is the leading and guiding force of Soviet society, the core of its political system, state and public organizations.”
Finally, the current Constitution came into force after the collapse of the USSR in 1993. Certainly, it immediately abolished the notorious Article 6, which declared the Communist Party to be the backbone of the Soviet Union’s political system. The Basic Law itself began to be regarded as the Constitution of Russia that had separated from its former partners in the Soviet Union. This latter option is considered to be the best one by many experts.
“Given the form in which the Constitution was originally adopted in 1993, it might be called a document of fairly high-quality,” Alexander Yermolenko told wek.ru. “Therefore, if we wanted to use it exactly as a kind of an instrument to regulate our lives, then it suits us perfectly.
Another thing is that for the last 20 years, we have been going rather quickly not TOWARDS the Constitution, but AWAY FROM the Constitution. It is clear that in the 1990s we did not follow it either. However, then we said that we are striving to live in accordance with the Constitution. However, the process is really not fast. Since then, 25 years have passed and during this time we have less of the Constitution, not more.”
Yermolenko is confident that if people are ready to live in a democratic society, the Constitution adopted in 1993 is a simple and clear “instruction” for it. That is, to live in compliance with the law, with the separation of powers, with equality before the law and the court and without censorship and without ideology,
(To be continued)