DRAFT CONSTITUTION OF THE REPUBLIC OF RUSSIA
with a brief political and legal analysis
Coordination of the drafting process: Petr Safronov
June 2023
BRIEF LEGAL AND POLICY ANALYSIS
Introduction
Drafting a new constitution is part of an effort to articulate a vision of a common future to the Russian citizens. The proposed draft does not seek to close the debate on the constitution. It indicates a possible approach, one position in the constitutional debate. This position is based on a republican political philosophy which thinks of politics as a common cause for the citizens of the state. This draft eliminates the institution of the presidency and the bloated powers of the federal government. Russia's political system under this draft is based on limiting the arbitrariness of the executive branch and decentralising federal relations. Among the innovations of the draft are constitutional guarantees of labour self-organisation and academic freedom, municipalisation of the police, and granting courts of general jurisdiction the right to directly apply constitutional norms. Given the measure of difference between citizens, working on the draft constitution cannot but be a conflictual process. The aim is to learn how to discuss and resolve conflicts constructively. Such a goal cannot be achieved in one fell swoop, without long preparation. The present draft is intended to stimulate a discussion on constitutional construction, on the re-establishment of the Russian political nation. This goal is realized, among other things, by consciously eliminating many elements of Russia's former constitutional order. The draft takes into account the comments received from professional lawyers, legal scholars andmembers of civilsociety. Ittakes into account the Russian-language drafts of the Constitution created since the late 1980s up to now, as well as the text of the current Russian Constitution. The source of ideas is also the experience of those countries and regions which, due to the size of their territory, diversity of their population, and their difficult historical heritage have faced and are facing challenges similar to those faced by Russia. These include Brazil, Germany, India, Spain, Portugal, Rojava, Chile, South Africa.
Why is there a need for a new constitution?
Why, now that Russia invaded Ukraine and the current political regime in Russia shows no clear signs of weakening, should there be a need to draft a constitution for the future Russia? The answer is that drafting and discussing constitutional projects today is the way to make the future of Russia not so one-dimensional tomorrow. Yes, new constitutional drafts are being drawn up now by those who have no power, as it would be strange to expect that those who are currently in power will change the established order. Nevertheless, it is possible to show the limitations of this order and set new lines of Russia's development overcoming them. The future of the citizens and all inhabitants of Russia is not entirely determined by the situation in which Russia, by the will of its criminal government, finds itself today. We do not know what might be important for the future, which means we can hope that even the most seemingly inconspicuous efforts may turn out to be necessary later on, may help to establish a just social order in Russia.
The word "constitution" has several meanings. First, it is an instrument of coordination between the different political and social forces, the rules of a peaceful political struggle. In this sense, Russia does not havea constitution at the moment, although there is a text that does contain many sensible norms. The fact is that since its adoption in 1993, and especially after 2012, the Constitution was not an instrument of coordination between the various political forces, but a weapon used in the interest of maintaining power by a narrow group of individuals. Russian citizens in this sense have yet to master the use of the Constitution as a tool. Secondly, the constitution is also a process of forming a negotiating field, a space for discussing the future. To convey this meaning, we can also use the term "constitutionalisation", indicating the ongoing efforts to create civic solidarity and responsibility. For constitutionalism to work, it must have content: clear and coherent ideas about how to organise the political life of a society. The development of content for a constitution can and should be done now, not later. Third, the word "constitution" describes the composition of circumstances, the arrangement of some area, some object or substance. In this sense, constitution is like creating a map of the terrain, a procedure for marking out reality. There is a paradox here: the constitution refers to what already is and at the same time forms the conditions for what may be in the future. This paradox need not be feared. It is the fact that the constitution, reacting to the existing, sets the possible that gives it strength. Nothing prevents constitution in the sense of juxtaposing the present and the desirable reality. In this way, it is possible to move towards the realisation of a future in which all citizens of Russia can find a place, despite – and because – of their differences.
How do you make a Constitution?
The Constitution is not a pre-made tool that can be used by all citizens. Instead, it is a process of formulating a vision and exploring reality that is inevitably fluid. It is a process that has multiple stages, often runs into dead-ends, and involves balancing different statuses and interests of the participants. Some say: “let's unite first and then draw up a constitution”. But this argument misses an indication of who will unite. All the citizens of Russia in general? Representatives of certain
views? Political activists? If unification is only about the ‘chosen ones’, then it is doomed. If it is a question of uniting Russian citizens, then given the lessons of our country's past and present, it is clear that uniting on the basis of personal loyalty to one person is a dangerous path. So one must seek other grounds for unity, and that inevitably means starting to discuss our respective positions and beliefs. The main thing is not to leave anyone out of the process. In any case, an agreement needs a subject: what exactly are we going to agree on. The different drafts of the constitution are answers to the question of what can be the subject of a social contract. Can all citizens of Russia want the same future? Of course not. There is no need to prove that people are different. Given the measure of difference between citizens, working on drafts of the Constitution and creating its final textcan'thelp but be a painful, conflictualprocess. The goal is not to make the Constitution a screen for contradictions but to learn to identify them, discuss and resolve them constructively, coming to a compromise.
Such a goal cannot be achieved in one go, without a long preparation. Therefore, there are different stages in the creation of a constitution, which can be passed consecutively, although in reality they often overlap each other. First, to realize what is the state of affairs now by carefully studying the text of the current Constitution of Russia, getting acquainted with the history of constitution-making in Russia and in the world, and assessing the risks and consequences of the decisions made by the framers of various constitutions. Then, one needs to formulate a certain set of ideas which could compete with the already existing landscape. We ought to test these ideas in different audiences and discuss them with experts in law, political philosophy, sociology, political science and other disciplines. Then, when these ideas are already expressed in the form of a coherent text, they need to be made the subject of broad public discussion and brought on the political arena. In this way, constitutional drafting becomes part of the search for a new formula for the social contract. It should always be remembered that a constitution is not a fool-proof solution against dictatorship and lawlessness, but only part of a complex system to contain the pressure that state power and bureaucracy exert on individuals and on various groups, especially the vulnerable. Still, it is a necessary part if we are to live together in one country.
On what values is the proposed draft constitution based?
This text, of course, does not predict or promise anything. Sooner or later, all citizens of Russia will have to decide together what kind of future they want. Our draft expresses the position of a small group of people who share the belief in three basic values: diversity, self-government and trust. Individual chapters and provisions in the text develop and elaborate on these values in relation to key aspects of the political system.
The value of diversity is embodied in those norms in the Constitutional Draft which enshrine various individual and collective rights and freedoms. The drafters have tried to take the experience of the drafters of the current Russian constitution into account and supplement it. This includes, for example, an expansion of the list of grounds on which discrimination is prohibited or detailed guarantees of the right to self-organisation for employees. A number of norms reflect the changes and challenges of our time: guarantees of internet access, ecological responsibility of citizens and companies, possibilities and limitations of the use of technology.
The value of self-governance is embodied in those norms in the constitutional draft that regulate the establishmentandoperation oflocal and regionalgovernment. The DraftConstitution explicitly states that local communities and regions have the right to independently form the system of executive and legislative bodies and describes in detail the basis for the financial activities of municipalities and regions. An important element of decentralised governance is the norm of municipalisation of the police, i.e. the subordination of local law enforcement agencies to the municipalities, enshrined in the draft.
The value of trust is embodied in those norms in the constitutional draft that regulate the duties of local and state government officials. While establishing mechanisms that would preserve representation of different groups in different government bodies (e.g. the possibility of forming municipalities by lot, competitive appointment of Supreme Court judges), the proposed draft refrains from describing the powers of officials in too much detail. We proceed from the notion that the necessary adjustment to possible irregularities will be primarily made by an independent court. In order to increase the authority of the judiciary, the draft entitles all courts to apply the Constitution directly.
The draftexcludes some elements of the constitutional order that have discredited themselves, most notably, the institution of presidency. This is done to prevent a re-usurpation of power and to strengthen parliamentary democracy, allowing more room for checks on its power by the civil society.
What new ideas does this Draft Constitution offer?
It is impossible to make a draft constitution "from scratch". But at the same time it should be remembered that the good intentions of the drafters of the current Constitution of the Russian Federation have not stood the test of reality. It is thus necessary to look for new approaches to the drafting and implementation of the Constitution. No set of constitutional provisions can be regarded as closed and final. The meaning of the Constitution is to strengthen the position of the citizens against the power of the state as much as possible. At the same time, the text of the constitution cannot be overloaded with minor details.
It must be admitted that no one knows what should be in the text of the ideal constitution, which includes the drafters of the proposed text. Existing constitutions come in different lengths and structures, use differentstyles, and address their readers indifferentways. The ideas of the proposed draft incorporate inspiration drawn from constitutional texts of Germany, Rojava region, India, Spain, Portugal, Chile, South Africa, as well as states formed after the collapse of the USSR or which were in the zone of its influence. It should be emphasised that, in our view, constitution-building should not be relegated to "winners", no matter who claims to play this role. Accordingly, the draft solves two related problems: (1) to eliminate political power of those institutions which pose the greatest threat of monopolisation (or depoliticization) of politics; and (2) to provide citizens, their associations, local and regional authorities with conditions and mechanisms for acting autonomously.
The first chapter of the Draft Constitution formulates the foundations of the constitutional order. Given the centrality of the value of civil self-governance, the draft uses the term "republic" instead
of "state". It is thus emphasised that the implementation and enforcement of the constitutional norms is the result of the common action of citizens, their conscientious work and communication between themselves. Following the example of the Indian constitution, the drafters have included a separate article (Article 2) defining the goals of the state. The main purpose of the article is to avoid interpretations of any of the constitutional provisions in the spirit of aggression and militarism. At the same time, the goals are intended to clarify the minimum shared objective that the citizens of the Republic, their associations, institutions and authorities should work in harmony with. Inclusion in the text of the Constitution of a separate norm stipulating Russia's multilingualism (Article 11) serves the practicalrealisation of the value of diversity. Combined with the norms guaranteeing equality of citizens, the protection of multilingualism as the basis of the constitutional order is seen as an important element in the inclusion in political life of those who have been excluded from it or have been subjected to unfair treatment for wanting to speak their native language.
The second chapter of the Draft Constitution is devoted to human and civil rights and freedoms. Considering the measure of social inequality that exists in Russia, the drafters have included in the text numerous norms that ensure the social and economic rights of citizens. For example, based on the text of the current Constitution, a number of norms concerning quality of life were formulated: accessible water, accessible energy, a clean environment and accessible housing (Articles 18-21). In addition, the drafters pointto the state'sobligations inrealising these rights. Thisapproach has been adopted inothernorms inChapter 2 inorderto makethe contentof allnorms asspecific as possible. Attention should be paid to the examples where the drafters, responding to the negative experience of the last decades, have tried to prevent the state from finding "loopholes" in certain constitutional provisions inorderto preventunreasonable restrictions to rights andfreedoms. For example, Article 31 (the number of which in this draft is kept the same as that of Article 31 of the current Constitution which guarantees the right to freedom of assembly out of respect for the tradition of peaceful civil actions in Russia) specifies that holding meetings, demonstrations, pickets and marches does not require prior notification of state or local authorities. Article 32 explicitly states that no restrictions on the suffrage rights of citizens other than deprivation of liberty or recognition of incapacity are permitted. This clarification is particularly important in the context of the Constitution's role as a social contract between all citizens of the country.
The third chapter of the Constitution deals with the institution of citizenship, central to the republican construction of political power. In order to emphasise the importance of this institution, the drafters have allocated the relevant norms to a separate chapter. Based on a number of provisions of the current Russian constitution, as well as on the experience of researching constitutions of various countries around the world, the drafters in this chapter also followed the path of specifying legal norms in order to eliminate possibilities of unreasonable restrictions of civil rights by the state authorities. Special mention should be made of Article 41, which establishes the inadmissibility of any restrictions on the rights of Russian citizens if they hold citizenship or residence permits of another state. This clarification, on the one hand, puts an end to the worrying trend of creeping restrictions on civil rights which violate the spirit of constitutional norms and, on the other hand, creates prerequisites for the re-integration into Russian society of those who have been forced to leave the country in recent years .
The fourth chapter of the Constitution establishes the basis for the implementation of local self-governance. It contains a number of innovations designed to strengthen the role and capacity of local communities. First, in order to enhance civic participation, Article 51 of the Draft broadens the circle of persons who can participate in the formation of local self-governance bodies to include persons permanently employed in a certain locality, foreign citizens and stateless persons. This is intended to ensure maximum diversity of represented groups at the local self-government level and to preventanymanifestation of discrimination. Secondly, Article 54 of the draftgives municipalities the power to form and control municipal police forces. This is a crucial change that reduces the potential for arbitrary policing and places the police under direct civilian control. Thirdly, Articles 55-57 of the draft law detail the fundamentals of the financial activity of municipalities. These rules are inserted in the text of the proposed draft law in order to fix real mechanisms for providing real support to those authorities that are closest to citizens in their position.
The fifth chapter of the draft deals with the structure of the judiciary. Probably the most important change to the judiciary that the draft proposes is the abolition of the Constitutional Court. Such a solution is proposed on the basis of three arguments: (1) the need to overcome the prevailing trend in Russia whereby the courts of general jurisdiction completely disregard constitutional norms when examining cases on their merits, thus effectively undermining the status of the Constitution as the basic law of the state; (2) the desire to enhance the prestige of courts of general jurisdiction and ensure their involvement in the real interpretation (and hence development) of constitutional norms (see Article 64 of the Draft); (3) the expansion of the possibility for citizens to use the constitutional norms in court. It should be understood that it is not, of course, about endowing every judge with the ability to create norms. The Draft is quite clear on the role of the Supreme Court, to which the power to interpret the text of the Constitution has been delegated. Article 73 of the Draft, which regulates the process of formation and operation of the Supreme Court, creates mechanisms for the rotation of the top ranks of the Russian judiciary on a competitive basis.
The sixth chapter of the draft establishes the constitutional foundations of federalism and federal relations. Given the importance of these issues for Russia, which currently comprises regions that are extremely different from one another, it is fairly certain that the regulation of federal relations will be hotly contested in the process of adopting the new Constitution. Therefore, in drafting this chapter, the drafters have recorded in a more or less clear form the minimum of ideas which seem to be able to serve as a basis for subsequent discussions. This is, firstly, the idea of an asymmetric construction of the federation, that is, a federation that takes into account a measure of real differences between the constituent entities. It is, secondly, the idea of inter-regional cooperation between the constituent entities, designed to strengthen the horizontal cohesion of the country beyond the actions of the federal government. It is, thirdly, the idea of increasing fiscal stability and autonomy of the regions, including through the establishment of a special-purpose Regional Development Fund. And finally, fourth, the idea, which seems to follow from all provisions of this chapter, that regions (as well as municipalities) can experiment within the framework of policy implementation in various areas, as if in a soft form testing those solutions that best serve the interests of the inhabitants of a particular territory.
The seventh and eighth chapters of the proposed draft contain rules governing the establishment and operation of federal legislative and executive bodies. The draft reflects the drafters' conviction
that the model of parliamentary democracy can be realised in Russia. At the same time - unlike traditional parliamentary democracies - the draft envisages the creation of a unicameral parliament. This decision can be justified by the fact that the chapters regulating local self-government and federal relations markedly expand the autonomy of the regions, thus partly removing from the agenda the problem of their representation in front of the federal centre. On the other hand, the huge gap in living standards between the regions makes the issue of political representation of the regions as such, rather than overcoming the socio-economic problems they face, particularly relevant. It is precisely this latter challenge that the Regional Development Fund will aim to address. In addition, regional diversity will be taken into account in creating a unicameral parliament, while respecting the principles of proportional representation. Finally, the draftis based on the need to expand civil control and to overcome the lack of political accountability of representative authorities by applying the electoral mechanism at regional and federal level. The draft contains articles (Articles 114-115 and 124-125) regulating in detail the prevention of corruption among the members of the federal legislative and executive authorities. The ninth chapter on amendments and revisions to the Constitution is based on a similar chapter in the current Russian Constitution. The draft introduces provisions for the Constitutional Assembly, an institution where the final draft for the future Russian Constitution will be developed and logically gives it autonomy to determine its rules of procedure. The final and transitional provisions outline the formation of the new constitutional order and, consequently, the dismantling of the former state structure.
What is to be done with this draft?
The Constitution does not and cannot have a single author, because no one can cover the whole range of problems of the political system on his or her own. It is therefore very important that the drafting process is transparentandopen to commentatallstages of the constitution-making process. Thisis the premisewhichunderlies our work.Theconstitutionalprocessis a multi-stage one,which means that the text cannot be successfully drafted at the first attempt. It is not even a question of the lack of qualifications of the drafters, but the fact that the theory and practice of constitutionalism can only gradually overcome the long years of legal arbitrariness. Therefore, it is only natural that a provisional, interim constitution should be drafted and adopted first, and then a longer-term text should be drafted. This is what was done, for example, in South Africa in the 1990s after the collapse of the apartheid regime.
The drafts of the Constitution cannot ignore the current political situation. On the other hand, the final text of the future Constitution cannot and should not be an answer only to the sore questions of a particular historical moment. The text of the Constitution can hardly be expected to be perfect. However, the presence or absence of certain values and principles in the Constitution and the clarity of its presentation are not meaningless. It is up to the citizens of Russia to reclaim and affirm the meaning of politics as a common cause. To this end, constitutional drafts must already be drafted, read, discussed and disseminated today.
Preamble
We, the citizens of Russia, conscious of the past's legacy
and of what we owe to the future, appreciating our differences and acknowledging the dignity of all,
establish this CONSTITUTION
CHAPTER I. GENERAL PROVISIONS
Article 1.
Russia is the Republic of its citizens.
Article 2.
The Republic's goals are to safeguard every person's freedom, to assist the destitute and suffering, to maintain peace amongst peoples, and to promote the safe coexistence of different forms of life.
Article 3.
Sovereignty belongs to the citizens of the Republic. Citizens exercise their power directly, as well as through local self-government and regional and federal state bodies.
Article 4.
TheRepublicis based on the jointaction of differentgroups of citizens who shall equally participate in society and contribute to the common good.
Article 5.
No person, group of persons or body shall be granted any exclusive power, authority or right other than that expressly laid down in the CONSTITUTION and other laws, even under the pretext of exceptional circumstances.
Article 6.
Russia is a federate republic. It is composed of regions (constituent entities of the federation) whose relations are regulated by this CONSTITUTION, by Federative Treaties, and other legislation.
Article 7.
The Russian Federation is a democratic republic. It is ruled by its citizens through bodies of local self-government, through the bodies of government of the regions (constituent entities of the Federation) and through the bodies of government of the Republic.
Article 8.
Russia is a secular republic. No religion is or may be declared to be the state religion. No religion may be prohibited.
Article 9.
Russia is a law-governed republic. All are equal before the law and the courts. The Republic shall prevent, investigate, punish and make full reparation for violations of human and civil rights and freedoms committed on its territory or on its behalf.
Article 10.
Russia is a multilingual republic. The official language shall be Russian. The languages of the peoples inhabiting the Republic may be recognised as regional languages within the boundaries of the respective regions (constituent entities of the federation). The Republic shall be obliged to recognize and respect all regional and local (municipal) languages.
Article 11.
Human beings and peoples constitute an inseparable whole with nature. The law promotes a relationship of harmonious balance between humankind and nature.
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