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To USSR-L subscribers,
There have been some postings lately asking what SOVSET is and
who it serves. In general it would not be proper to copy
SOVSET's material and distribute in USSR-L, since SOVSET is
a service subscribers pay for. In the case of the following
article, which was posted by SOVSET today (Nov. 13), I own the
copyright. I am posting it on USSR-L partly to give you an idea
of the material carried by SOVSET.
Darrell Hammer
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WRITING A NEW RUSSIAN CONSTITUTION
Darrell P. Hammer
Indiana University
In June the newly elected Congress of People's Deputies of
the RSFSR resolved to write a new constitution for the republic,
and appointed a constitutional commission of 100 members under
the chairmanship of Boris Eltsin.[1] The commission promptly
created a "working group" of legal experts. These experts
completed their work in less than four months, and have now
submitted a working draft of a new constitution for consideration
by the commission.[2]
Despite the speed with which it was put together, the draft
is long and detailed, probably too detailed to be a good
constitution. Some of the detailed provisions, however, are
dictated by Soviet experience and an obvious desire to keep
history from repeating itself. For example, the draft makes
usurpation of power a state crime, and makes it unlawful to
establish a one-party system.
The draft consists of five sections, which cover these
topics: (1) basic principles, (2) rights and obligations of
citizens, (3) civil society, (4) the federal system, and (5) the
structure of the state. A number of questions, however, were
left to be resolved by the constitutional commission. The
experts were unable to agree on two important points, the nature
of the Presidential office, and the electoral system.
BASIC PRINCIPLES
The working draft solemnly proclaims the Russian Federation
to be a sovereign state, repeating the language of the
Declaration on Sovereignty adopted by the first Congress of
People's Deputies.[3] Since the RSFSR was already "sovereign"[4]
it was not clear what the declaration really meant. It did
contain a "supreme law" clause, proclaiming the supremacy of the
RSFSR Constitution and RSFSR laws on the entire territory of the
republic.[5] The working draft is slightly different, and makes
only the republic constitution the supreme law.
The draft provides for strict separation of powers between
the legislature (the Parliament or State Duma), the executive
(President), and the courts.
THE RIGHTS AND OBLIGATIONS OF CITIZENS
The draft offers a long list individual rights, but it adds
(like the ninth amendment to the U. S. Constitution) that the
enumeration of certain rights should not be construed as limiting
other rights not mentioned in the document. Citizens are
promised equality of rights regardless of social origin,
property, place of residence, language, race, attitude toward
religion, political or other convictions, party membership, or
previous criminal conviction. Men and women are to be treated
equally. The rules for attaining or losing citizenship are to
be defined by law, but no one can be arbitrarily deprived of
citizenship, and no citizen can be forcibly deported. All
citizens have the right to leave the federation, and to return.
Citizens have the right to life, and capital punishment can be
applied by a court only as an "exceptional measure" for the most
serious crimes.[6]
Interference in the private or family life of citizens is
forbidden. The inviolability of the individual is guaranteed,
and no one can be arrested except on the basis of a court order.
The draft contains a long list of individual rights--most of
which already exist on paper, such as the right to privacy of
correspondence (USSR Constitution, art. 56).
However, the restrictions on individual rights in article 39,
50 and 51 of the USSR Constitution have been eliminated. The
draft does provide that the exercise of rights by one person
should not damage the legal interests or rights of another.
Furthermore, individual rights may not be exercised for the
purpose of overthrowing the political order by force, for
propagandizing war, or for stirring up religious, social, or
national hostility.[7]
The writers of the draft were less categorical in defining
economic rights. In contrast to the USSR Constitution (art. 42),
which guarantees free medical care, the draft promises free care
only to those who lack the resources to pay for it. The draft
promises free access only to "basic education" (osnovnoe
obrazovanie), without defining this term. It offers the
individual "social protection against unemployment" but it does
not guarantee everyone a job.
As in the Declaration on Sovereignty, the draft provides that
citizens are under the protection of the Russian Federation, both
on its territory and outside its borders.
The draft provides for procedural rights in language much
like that of the U. S. Constitution. It protects accused persons
against double jeopardy and self-incrimination, and it guarantees
the right to counsel. To protect these rights, the draft would
create a new office, Supreme Defender (Verkhovnyi
pravozashchitnik), who is elected by Parliament.
CIVIL SOCIETY
The chapter on civil society is designed to protect private
property and the market system. The draft goes far beyond the U.
S. Constitution, and proclaims private property as an
"inalienable natural right." The essential clause of this
follows:
Free enterprise is recognized and guaranteed by law.
The right to free enterprise (independent economic
activity for the purpose of making a profit) is recognized
for individuals, for societies organized for this purpose,
for state enterprises, and for enterprises owned by local
government.
Relations between enterprises are regulated by contract.
The state guarantees the right to freely enter into
contracts, and to judicial resolution of conflict connected
with them. Administrative compulsion to enter into deals is
forbidden.
The procedure and forms of entrepreneurial activity, of
the creation of societies of entrepreneurs, and the
obligations of entrepreneurs in relation to agencies of the
state or local government, are defined by law.
Under the heading of "civil society" the draft also discusses
the family, education, culture, the media, religion, and public
organizations and political parties. The family is described as
the natural nucleus (yacheika) of society, and is put
under the special protection of the state. Censorship is
forbidden, and all political parties are promised equal access to
state-owned radio and television. Neither the state nor any
political party is to exercise a monopoly over the media.
The federation is to be based on political and
ideological pluralism (plyuralizm) which is said to rule
out totalitarianism or any form of dictatorship. There is to be
no official state ideology. The draft provides for a multiparty
system, and a one-party system is explicitly outlawed. However,
the draft allows the banning of political parties which propagate
racial, religious, national, or class hatred, which employ force
or threaten the forcible overthrow of the government, which
oppose the law-governed state. Political parties are not to have
organizations within the public service, in the armed forces, or
in the police. (An alternate version would add state enterprises
and educational institutions to this list.)
THE FEDERAL SYSTEM
In July the presidium of the RSFSR Supreme Soviet issued a
call for a "federal treaty" to be negotiated among all the
territorial units which make up the federation.[8] The
constitution writers did not wait for this treaty, but proceeded
to work out the details of the new federal structure.
The federation is composed of national-territorial formations
(republics) and regions (also referred to as federal
territories), which are both referred to as the "subjects" of the
federation. The republics presumably are the present-day
autonomous republics, oblasts, and districts, and the territories
are presumably the oblasts and krais. However, any territory
can, through a referendum, transform itself into a republic, and
any republic can become a territory. The draft lists twenty-four
functions which are reserved to the federation, and of these the
following are of special interest:
1. Preserving the unity of an all-Russian market.
2. Control over natural resources.
3. Managing the money supply, including foreign currency.
4. Foreign policy and inter-state relations.
5. Customs and border control.
6. Activities in the cosmos.
7. Standards for measurement and time.
8. Protection of copyright and patents.
9. Defense and the armed forces, security services and
federal police.
These are all functions which now belong to the all-union
government. If they are in fact assumed by the Russian republic,
the adoption of this constitution would mean the disappearance of
the USSR as we know it. In addition, the draft provides that the
federation has jurisdiction in criminal law, as at present. In
the case of civil, labor, economic and procedural law, the
federation lays the foundation; writing specific law codes in
these spheres is left to the national or regional governments.
This provision follows the present model, where the all-Union
Supreme Soviet enacts "fundamental laws" but the drafting of
codes is left to the union republics.[9]
The USSR is never mentioned in the working draft. However,
the document provides that the Russian Federation can voluntarily
enter into a commonwealth or union with other sovereign states.
The Russian Federation would reserve to itself the right to
secede from any such union. The Russian language is to be the
official language of the federation. Every subject, however, can
choose a different official language for its own territory.
THE ORGANIZATION OF THE STATE
The experts were divided on the role and functions of the
President, and so section 5 of the draft is given in two
versions, A and B. Version A provides for a presidency more or
less on the French model, while version B offers an American-
style presidency. In version A the President appoints a premier,
who presides over a government that is responsible to parliament.
In version B, the President is not only chief of state but also
head of the government.
The President. The functions of chief of state are to
be vested in a new official, the President of the Federation.
The President is to be elected by popular vote for a four-year
term, and is limited to two terms in office. The functions of
the President which are common to both versions are the
following:
1. Represents the Federation in internal and international
affairs.
2. Guarantees the proper execution of the Constitution and
the laws.
3. Subject to the approval of Parliament, appoints the
chairman and members of the Constitutional Court and the Supreme
Court, ministers, ambassadors, and other officials.
4. Removes ministers and other officials.
5. Guides the execution of foreign policy and concludes
treaties, subject to the approval of Parliament.
6. Is the commander in chief of the armed forces.
7. Declares a state of emergency, subject to approval of
Parliament.
8. When there is a danger of attack, calls for a partial or
general mobilization, subject to approval of Parliament.
9. In the event of attack, orders the armed forces into
action, subject to approval of Parliament.
10. Signs and promulgates laws of the Federation.
The President has a veto power over legislation. In version B,
he must act on legislation within fifteen days, and a veto can be
overridden by a two-thirds vote of each house of Parliament.
According to version A, the President's veto can be
overridden by a simple majority. Version A also provides that
the President, after consultation with the House of People's
Representatives, appoints the premier. He is also empowered to ask the
house for a vote of confidence in the government.
The President can be removed from office by impeachment, but
the process is complex. Either house of parliament can impeach
the President by a two-thirds vote. The case is then heard by
the Constitutional Court. The final decision is taken by the
other house, and the President can be removed by a two-thirds
vote. The role of the court in this process is not clear. The
draft does not specifically say whether the court can terminate
the impeachment process by acquitting the President, or merely
gives an opinion.
The draft also provides for a Vice President, whose primary
function is to preside at joint sessions of the parliament. The
Vice President can act for the President during temporary periods
of absence. If the presidential office is vacated for any reason
the Vice President assumes the office of President for the
remainder of the term. If the vice presidency becomes vacant a
new Vice President can be elected by the parliament.
Parliament. The State Duma consists of two houses--a
House of People's Representatives, and a Federal Council. The
House of People's Representatives is directly elected by the
people. The Federal Soviet consists of an equal number of
representatives from each subject of the federation. The working
draft offers two plans for election of the Federal Council--
either direct election by the people, or election by the
legislature of the territorial units that they represent.
In version A, the Parliament is responsible for forming a
government. However, the premier is nominated by the President
and confirmed by the House of People's Representatives. Only
this house can dismiss the government by a no-confidence vote.
Either house can dissolve itself, in which case the President
must call a new election for that house. Version A also provides
that legislation originates in the House of People's
Representatives.
In version B the Parliament is elected for a fixed term, and
elections are to be held on the second Sunday of March every
fourth year.
The Electoral System. The draft provides for two
different electoral systems. Version I provides for single-
member constituencies which are to be approximately equal in
size.
Version II provides for proportional representation. The
country is to be divided into a number of multi-member districts,
and in each district deputies are to be elected by a list system.
In countries where it has been tried, the list system has
strengthened individual parties by making it virtually impossible
to get elected without a party endorsement. The draft has tried to
overcome this buy allowing individuals to get their names on the
list without party approval, and by allowing the individual
voters, if they choose, to list their order of preference among
the candidates. This system would theoretically allow
independent candidates to win election, but it would also
confront the voter with a very complicated set of choices.
The Courts. The draft proposes a Constitutional Court
and a Supreme Court, but empowers Parliament to set up other,
inferior courts. Judges of these two top-ranked courts are
appointed by the President with the approval of Parliament.
Other federal judges are appointed by the President alone.
Judges are to be appointed for life, except that Parliament may
set a compulsory retirement age.[10]
The Constitutional Court consists of eleven judges appointed
by the President and confirmed by Parliament. It is empowered to
decide the constitutionality of statutes or other legal
enactments, both of the Federation and of its subjects. As
already noted, the Constitutional Court "participates" in the
impeachment process. It has additional powers, including the
right (at the request of Parliament) to give authoritative
interpretations of the Constitution, and to determine the
competence of the President to exercise his office.
The Supreme Court functions as the final appeals court in
cases of criminal, civil, or administrative law.
Emergency Powers. The draft devotes almost three
pages to the President's emergency powers. If the President
declares a state of emergency, either locally or throughout the
federation, Parliament must be notified within seventy-two hours,
and such a declaration can remain in effect for only thirty days.
Parliament can extend the emergency powers, but only for thirty-
day periods. A state of emergency cannot be used to limit the
powers of Parliament or the courts, and during a state of
emergency the Constitution cannot be amended and the election
laws cannot be changed.
Ratification and Amendment. The constitution is to
take effect only after ratification by a national referendum.
Once the new constitution comes into force, the constitution of
1978 is void. Statutes passed by the RSFSR remain in force only
if they do not contradict the new constitution or new statutes
passed on its authority.
The draft provides for an amendment process which is slow and
cumbersome. and it also lays down a rule that the "basic
principles" of the constitution cannot be changed. First, an
amendment must be formally proposed to the Parliament. The
proposer can be a group consisting of one-fifth of the members of
either house, or the President, or by one million citizens, or a
variety of others. Six months following the formal proposal, the
parliament can act, and the proposal needs a two-thirds vote of
both houses. Then the amendment must be submitted to the
subjects of the federation for ratification. The amendment is
formally adopted if two-thirds of the subjects agree to
ratification.
CONCLUSION
This working draft is more than a constitution. It is also a
declaration of independence. The Russian Federation, operating
under this proposed constitution, would be an independent and
sovereign state. Even if the federation chose to exercise its
right to enter into a commonwealth, the resulting union would
only be a loose confederation.
The speed with which the draft was put together suggests that
the RSFSR leadership is anxious to produce a finished
constitution before the all-union constitutional commission
finishes its work. However, the draft is far too long for an
effective constitution. Large sections of the document could be
left for enactment by the new parliament, as organic law.
Before it finishes its work, the Russian commission must
decide what kind of presidency it wants. It ought to give
consideration to a third model--the German model, where the
President is only a ceremonial head of state and real executive
power is vested in the head of government.
NOTES
1. Sovetskaya Rossiya, June 17, 1990.
2. Konstitutsiya (osnovnoi zakon) Rossiiskoi federatsii.
Proekt rabochei gruppy i gruppy ekspertov Konstitutsionnoi
komissii RSFSR - s parallel'nymi mestami i variantami. This
document is dated Oct. 11, 1990. Hereafter the document is
referred to as a working draft.
3. Sovetskaya Rossiya, June 14, 1990.
4. Constitution of the USSR (1977), art. 76; Constitution of
the RSFSR (1978), art. 68.
5. The declaration in fact is not consistent with the
republic constitution, since that constitution (art. 76) provides
that USSR laws are binding on republic territory.
6. Soviet criminal law presently defines the death penalty
as an exceptional measure. Osnovy ugolovnogo zakonodatel'stva
Soyuza SSR i soyuznykh respublik (1959), art. 22. However,
the death penalty can be used to punish a variety of crimes --
not only murder, serious crimes against the state, and certain
crimes committed in wartime, but also counterfeiting, illegal
dealing in foreign currency, bribe-taking, and aggravated rape.
7. Art. 39 of the USSR Constitution provides that individual
rights cannot be exercised in a way which damages the interests
of society or the state. Articles 50 and 51 provide that the
rights of free expression and association are granted in order to
advance the interests of the system.
8. Sovetskaya Rossiya, July 20, 1990.
9. Family law is considered a separate branch of law in the
USSR: the fundamentals are laid down in all-union legislation,
and each republic has a code of family law. This sphere of law
is not mentioned in the draft.
10. Some members of the working group opposed the idea of a
Constitutional Court, and there is a second version of this
section which omits any mention of that court. In the second
version, the Supreme Court rather than the Constitutional Court
would be involved in the impeachment process.