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
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.