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<h2>sovconst</h2>
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<p>To USSR-L subscribers,
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There have been some postings lately asking what SOVSET is and
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who it serves. In general it would not be proper to copy
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SOVSET's material and distribute in USSR-L, since SOVSET is
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a service subscribers pay for. In the case of the following
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article, which was posted by SOVSET today (Nov. 13), I own the
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copyright. I am posting it on USSR-L partly to give you an idea
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of the material carried by SOVSET.</p>
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<p>Darrell Hammer</p>
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<p> WRITING A NEW RUSSIAN CONSTITUTION</p>
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<p> Darrell P. Hammer
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<span class="NORP">Indiana</span> University</p>
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<p> In June the newly elected Congress of People's Deputies of
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the RSFSR resolved to write a new constitution for the republic,
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and appointed a constitutional commission of 100 members under
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the chairmanship of Boris Eltsin.[1] The commission promptly
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created a "working group" of legal experts. These experts
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completed their work in less than four months, and have now
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submitted a working draft of a new constitution for consideration
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by the commission.[2]
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Despite the speed with which it was put together, the draft
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is long and detailed, probably too detailed to be a good
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constitution. Some of the detailed provisions, however, are
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dictated by Soviet experience and an obvious desire to keep
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history from repeating itself. For example, the draft makes
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usurpation of power a state crime, and makes it unlawful to
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establish a one-party system.
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The draft consists of five sections, which cover these
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topics: (1) basic principles, (2) rights and obligations of
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citizens, (3) civil society, (4) the federal system, and (5) the
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structure of the state. A number of questions, however, were
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left to be resolved by the constitutional commission. The
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experts were unable to agree on two important points, the nature
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of the Presidential office, and the electoral system.
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BASIC PRINCIPLES
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The working draft solemnly proclaims the <span class="NORP">Russian</span> Federation
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to be a sovereign state, repeating the language of the
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Declaration on Sovereignty adopted by the first Congress of
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People's Deputies.[3] Since the RSFSR was already "sovereign"[4]
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it was not clear what the declaration really meant. It did
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contain a "supreme law" clause, proclaiming the supremacy of the
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RSFSR Constitution and RSFSR laws on the entire territory of the
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republic.[5] The working draft is slightly different, and makes
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only the republic constitution the supreme law.
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The draft provides for strict separation of powers between
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the legislature (the Parliament or State Duma), the executive
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(President), and the courts.
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THE RIGHTS AND OBLIGATIONS OF CITIZENS
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The draft offers a long list individual rights, but it adds
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(like the ninth amendment to the U. S. Constitution) that the
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enumeration of certain rights should not be construed as limiting
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other rights not mentioned in the document. Citizens are
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promised equality of rights regardless of social origin,
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property, place of residence, language, race, attitude toward
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religion, political or other convictions, party membership, or
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previous criminal conviction. Men and women are to be treated
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equally. The rules for attaining or losing citizenship are to
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be defined by law, but no one can be arbitrarily deprived of
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citizenship, and no citizen can be forcibly deported. All
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citizens have the right to leave the federation, and to return.
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Citizens have the right to life, and capital punishment can be
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applied by a court only as an "exceptional measure" for the most
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serious crimes.[6]
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Interference in the private or family life of citizens is
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forbidden. The inviolability of the individual is guaranteed,
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and no one can be arrested except on the basis of a court order.
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The draft contains a long list of individual rights--most of
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which already exist on paper, such as the right to privacy of
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correspondence (USSR Constitution, art. 56).
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However, the restrictions on individual rights in article 39,
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50 and 51 of the USSR Constitution have been eliminated. The
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draft does provide that the exercise of rights by one person
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should not damage the legal interests or rights of another.
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Furthermore, individual rights may not be exercised for the
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purpose of overthrowing the political order by force, for
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propagandizing war, or for stirring up religious, social, or
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national hostility.[7]
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The writers of the draft were less categorical in defining
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economic rights. In contrast to the USSR Constitution (art. 42),
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which guarantees free medical care, the draft promises free care
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only to those who lack the resources to pay for it. The draft
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promises free access only to "basic education" (osnovnoe
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obrazovanie), without defining this term. It offers the
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individual "social protection against unemployment" but it does
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not guarantee everyone a job.
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As in the Declaration on Sovereignty, the draft provides that
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citizens are under the protection of the <span class="NORP">Russian</span> Federation, both
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on its territory and outside its borders.
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The draft provides for procedural rights in language much
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like that of the U. S. Constitution. It protects accused persons
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against double jeopardy and self-incrimination, and it guarantees
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the right to counsel. To protect these rights, the draft would
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create a new office, Supreme Defender (Verkhovnyi
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pravozashchitnik), who is elected by Parliament.
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CIVIL SOCIETY
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The chapter on civil society is designed to protect private
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property and the market system. The draft goes far beyond the U.
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S. Constitution, and proclaims private property as an
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"inalienable natural right." The essential clause of this
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follows:
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Free enterprise is recognized and guaranteed by law.
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The right to free enterprise (independent economic
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activity for the purpose of making a profit) is recognized
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for individuals, for societies organized for this purpose,
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for state enterprises, and for enterprises owned by local
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government.
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Relations between enterprises are regulated by contract.
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The state guarantees the right to freely enter into
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contracts, and to judicial resolution of conflict connected
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with them. Administrative compulsion to enter into deals is
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forbidden.
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The procedure and forms of entrepreneurial activity, of
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the creation of societies of entrepreneurs, and the
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obligations of entrepreneurs in relation to agencies of the
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state or local government, are defined by law.
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Under the heading of "civil society" the draft also discusses
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the family, education, culture, the media, religion, and public
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organizations and political parties. The family is described as
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the natural nucleus (yacheika) of society, and is put
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under the special protection of the state. Censorship is
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forbidden, and all political parties are promised equal access to
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state-owned radio and television. Neither the state nor any
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political party is to exercise a monopoly over the media.
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The federation is to be based on political and
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ideological pluralism (plyuralizm) which is said to rule
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out totalitarianism or any form of dictatorship. There is to be
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no official state ideology. The draft provides for a multiparty
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system, and a one-party system is explicitly outlawed. However,
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the draft allows the banning of political parties which propagate
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racial, religious, national, or class hatred, which employ force
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or threaten the forcible overthrow of the government, which
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oppose the law-governed state. Political parties are not to have
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organizations within the public service, in the armed forces, or
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in the police. (An alternate version would add state enterprises
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and educational institutions to this list.)
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THE FEDERAL SYSTEM
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In July the presidium of the RSFSR Supreme Soviet issued a
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call for a "federal treaty" to be negotiated among all the
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territorial units which make up the federation.[8] The
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constitution writers did not wait for this treaty, but proceeded
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to work out the details of the new federal structure.
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The federation is composed of national-territorial formations
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(republics) and regions (also referred to as federal
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territories), which are both referred to as the "subjects" of the
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federation. The republics presumably are the present-day
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autonomous republics, oblasts, and districts, and the territories
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are presumably the oblasts and krais. However, any territory
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can, through a referendum, transform itself into a republic, and
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any republic can become a territory. The draft lists twenty-four
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functions which are reserved to the federation, and of these the
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following are of special interest:
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1. Preserving the unity of an all-<span class="NORP">Russian</span> market.
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2. Control over natural resources.
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3. Managing the money supply, including foreign currency.
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4. Foreign policy and inter-state relations.
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5. Customs and border control.
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6. Activities in the cosmos.
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7. Standards for measurement and time.
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8. Protection of copyright and patents.
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9. Defense and the armed forces, security services and
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federal police.
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These are all functions which now belong to the all-union
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government. If they are in fact assumed by the <span class="NORP">Russian</span> republic,
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the adoption of this constitution would mean the disappearance of
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the USSR as we know it. In addition, the draft provides that the
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federation has jurisdiction in criminal law, as at present. In
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the case of civil, labor, economic and procedural law, the
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federation lays the foundation; writing specific law codes in
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these spheres is left to the national or regional governments.
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This provision follows the present model, where the all-Union
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Supreme Soviet enacts "fundamental laws" but the drafting of
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codes is left to the union republics.[9]
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The USSR is never mentioned in the working draft. However,
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the document provides that the <span class="NORP">Russian</span> Federation can voluntarily
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enter into a commonwealth or union with other sovereign states.
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The <span class="NORP">Russian</span> Federation would reserve to itself the right to
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secede from any such union. The <span class="NORP">Russian</span> language is to be the
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official language of the federation. Every subject, however, can
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choose a different official language for its own territory.
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THE ORGANIZATION OF THE STATE
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The experts were divided on the role and functions of the
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President, and so section 5 of the draft is given in two
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versions, A and B. Version A provides for a presidency more or
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less on the French model, while version B offers an American-style presidency. In version A the President appoints a premier,
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who presides over a government that is responsible to parliament.
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In version B, the President is not only chief of state but also
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head of the government.
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The President. The functions of chief of state are to
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be vested in a new official, the President of the Federation.
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The President is to be elected by popular vote for a four-year
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term, and is limited to two terms in office. The functions of
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the President which are common to both versions are the
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following:
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1. Represents the Federation in internal and international
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affairs.
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2. Guarantees the proper execution of the Constitution and
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the laws.
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3. Subject to the approval of Parliament, appoints the
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chairman and members of the Constitutional Court and the Supreme
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Court, ministers, ambassadors, and other officials.
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4. Removes ministers and other officials.
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5. Guides the execution of foreign policy and concludes
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treaties, subject to the approval of Parliament.
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6. Is the commander in chief of the armed forces.
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7. Declares a state of emergency, subject to approval of
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Parliament.
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8. When there is a danger of attack, calls for a partial or
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general mobilization, subject to approval of Parliament.
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9. In the event of attack, orders the armed forces into
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action, subject to approval of Parliament.
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10. Signs and promulgates laws of the Federation.
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The President has a veto power over legislation. In version B,
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he must act on legislation within fifteen days, and a veto can be
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overridden by a two-thirds vote of each house of Parliament.
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According to version A, the President's veto can be
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overridden by a simple majority. Version A also provides that
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the President, after consultation with the House of People's
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Representatives, appoints the premier. He is also empowered to ask the
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house for a vote of confidence in the government.
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The President can be removed from office by impeachment, but
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the process is complex. Either house of parliament can impeach
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the President by a two-thirds vote. The case is then heard by
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the Constitutional Court. The final decision is taken by the
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other house, and the President can be removed by a two-thirds
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vote. The role of the court in this process is not clear. The
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draft does not specifically say whether the court can terminate
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the impeachment process by acquitting the President, or merely
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gives an opinion.
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The draft also provides for a Vice President, whose primary
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function is to preside at joint sessions of the parliament. The
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Vice President can act for the President during temporary periods
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of absence. If the presidential office is vacated for any reason
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the Vice President assumes the office of President for the
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remainder of the term. If the vice presidency becomes vacant a
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new Vice President can be elected by the parliament.
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Parliament. The State Duma consists of two houses--a
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House of People's Representatives, and a Federal Council. The
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House of People's Representatives is directly elected by the
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people. The Federal Soviet consists of an equal number of
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representatives from each subject of the federation. The working
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draft offers two plans for election of the Federal Council--
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either direct election by the people, or election by the
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legislature of the territorial units that they represent.
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In version A, the Parliament is responsible for forming a
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government. However, the premier is nominated by the President
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and confirmed by the House of People's Representatives. Only
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this house can dismiss the government by a no-confidence vote.
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Either house can dissolve itself, in which case the President
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must call a new election for that house. Version A also provides
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that legislation originates in the House of People's
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Representatives.
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In version B the Parliament is elected for a fixed term, and
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elections are to be held on the second <span class="LOC">Sunday</span> of March every
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fourth year.
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The Electoral System. The draft provides for two
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different electoral systems. Version I provides for single-member constituencies which are to be approximately equal in
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size.
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Version II provides for proportional representation. The
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country is to be divided into a number of multi-member districts,
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and in each district deputies are to be elected by a list system.
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In countries where it has been tried, the list system has
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strengthened individual parties by making it virtually impossible
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to get elected without a party endorsement. The draft has tried to
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overcome this buy allowing individuals to get their names on the
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list without party approval, and by allowing the individual
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voters, if they choose, to list their order of preference among
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the candidates. This system would theoretically allow
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independent candidates to win election, but it would also
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confront the voter with a very complicated set of choices.
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The Courts. The draft proposes a Constitutional Court
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and a Supreme Court, but empowers Parliament to set up other,
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inferior courts. Judges of these two top-ranked courts are
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appointed by the President with the approval of Parliament.
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Other federal judges are appointed by the President alone.
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Judges are to be appointed for life, except that Parliament may
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set a compulsory retirement age.[10]
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The Constitutional Court consists of eleven judges appointed
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by the President and confirmed by Parliament. It is empowered to
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decide the constitutionality of statutes or other legal
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enactments, both of the Federation and of its subjects. As
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already noted, the Constitutional Court "participates" in the
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impeachment process. It has additional powers, including the
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right (at the request of Parliament) to give authoritative
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interpretations of the Constitution, and to determine the
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competence of the President to exercise his office.
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The Supreme Court functions as the final appeals court in
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cases of criminal, civil, or administrative law.
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Emergency Powers. The draft devotes almost three
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pages to the President's emergency powers. If the President
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declares a state of emergency, either locally or throughout the
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federation, Parliament must be notified within seventy-two hours,
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and such a declaration can remain in effect for only thirty days.
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Parliament can extend the emergency powers, but only for thirty-day periods. A state of emergency cannot be used to limit the
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powers of Parliament or the courts, and during a state of
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emergency the Constitution cannot be amended and the election
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laws cannot be changed.
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Ratification and Amendment. The constitution is to
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take effect only after ratification by a national referendum.
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Once the new constitution comes into force, the constitution of
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1978 is void. Statutes passed by the RSFSR remain in force only
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if they do not contradict the new constitution or new statutes
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passed on its authority.
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The draft provides for an amendment process which is slow and
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cumbersome. and it also lays down a rule that the "basic
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principles" of the constitution cannot be changed. First, an
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amendment must be formally proposed to the Parliament. The
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proposer can be a group consisting of one-fifth of the members of
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either house, or the President, or by one million citizens, or a
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variety of others. Six months following the formal proposal, the
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parliament can act, and the proposal needs a two-thirds vote of
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both houses. Then the amendment must be submitted to the
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subjects of the federation for ratification. The amendment is
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formally adopted if two-thirds of the subjects agree to
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ratification.
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CONCLUSION
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This working draft is more than a constitution. It is also a
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declaration of independence. The <span class="NORP">Russian</span> Federation, operating
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under this proposed constitution, would be an independent and
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sovereign state. Even if the federation chose to exercise its
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right to enter into a commonwealth, the resulting union would
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only be a loose confederation.
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The speed with which the draft was put together suggests that
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the RSFSR leadership is anxious to produce a finished
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constitution before the all-union constitutional commission
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finishes its work. However, the draft is far too long for an
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effective constitution. Large sections of the document could be
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left for enactment by the new parliament, as organic law.
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Before it finishes its work, the <span class="NORP">Russian</span> commission must
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decide what kind of presidency it wants. It ought to give
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consideration to a third model--the German model, where the
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President is only a ceremonial head of state and real executive
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power is vested in the head of government.
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NOTES
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1. Sovetskaya Rossiya, June 17, 1990.
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2. Konstitutsiya (osnovnoi zakon) Rossiiskoi federatsii.
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Proekt rabochei gruppy i gruppy ekspertov Konstitutsionnoi
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komissii RSFSR - s parallel'nymi mestami i variantami. This
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document is dated Oct. 11, 1990. Hereafter the document is
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referred to as a working draft.
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3. Sovetskaya Rossiya, June 14, 1990.
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4. Constitution of the USSR (1977), art. 76; Constitution of
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the RSFSR (1978), art. 68.
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5. The declaration in fact is not consistent with the
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republic constitution, since that constitution (art. 76) provides
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that USSR laws are binding on republic territory.
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6. Soviet criminal law presently defines the death penalty
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as an exceptional measure. Osnovy ugolovnogo zakonodatel'stva
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Soyuza SSR i soyuznykh respublik (1959), art. 22. However,
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the death penalty can be used to punish a variety of crimes --
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not only murder, serious crimes against the state, and certain
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crimes committed in wartime, but also counterfeiting, illegal
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dealing in foreign currency, bribe-taking, and aggravated rape.
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7. Art. 39 of the USSR Constitution provides that individual
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rights cannot be exercised in a way which damages the interests
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of society or the state. Articles 50 and 51 provide that the
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rights of free expression and association are granted in order to
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advance the interests of the system.
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8. Sovetskaya Rossiya, July 20, 1990.
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9. Family law is considered a separate branch of law in the
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USSR: the fundamentals are laid down in all-union legislation,
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and each republic has a code of family law. This sphere of law
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is not mentioned in the draft.
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10. Some members of the working group opposed the idea of a
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Constitutional Court, and there is a second version of this
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section which omits any mention of that court. In the second
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version, the Supreme Court rather than the Constitutional Court
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would be involved in the impeachment process.</p>
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</body>
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