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

50 and 51 of the USSR Constitution have been eliminated. and the obligations of entrepreneurs in relation to agencies of the . The draft provides for procedural rights in language much like that of the U. and it guarantees the right to counsel. social. or for stirring up religious. Constitution. for societies organized for this purpose. Administrative compulsion to enter into deals is forbidden. which guarantees free medical care.[7] The writers of the draft were less categorical in defining economic rights.[6] Interference in the private or family life of citizens is forbidden. The draft promises free access only to "basic education" (osnovnoe obrazovanie). individual rights may not be exercised for the purpose of overthrowing the political order by force. However. the draft would create a new office. 56). for propagandizing war. political or other convictions. The procedure and forms of entrepreneurial activity. 42). such as the right to privacy of correspondence (USSR Constitution. The draft goes far beyond the U. The right to free enterprise (independent economic activity for the purpose of making a profit) is recognized for individuals. Furthermore. who is elected by Parliament. and to judicial resolution of conflict connected with them. without defining this term. To protect these rights. All citizens have the right to leave the federation. and no one can be arrested except on the basis of a court order. art. Constitution. The rules for attaining or losing citizenship are to be defined by law. and for enterprises owned by local government. Citizens have the right to life. Men and women are to be treated equally. The draft does provide that the exercise of rights by one person should not damage the legal interests or rights of another. Relations between enterprises are regulated by contract. or previous criminal conviction. or national hostility. the restrictions on individual rights in article 39. Supreme Defender (Verkhovnyi pravozashchitnik)." The essential clause of this follows: Free enterprise is recognized and guaranteed by law. The inviolability of the individual is guaranteed. CIVIL SOCIETY The chapter on civil society is designed to protect private property and the market system. but no one can be arbitrarily deprived of citizenship. As in the Declaration on Sovereignty. The draft contains a long list of individual rights--most of which already exist on paper. and to return. the draft provides that citizens are under the protection of the Russian Federation. and proclaims private property as an "inalienable natural right. for state enterprises. and capital punishment can be applied by a court only as an "exceptional measure" for the most serious crimes. S. both on its territory and outside its borders.religion. party membership. and no citizen can be forcibly deported. It offers the individual "social protection against unemployment" but it does not guarantee everyone a job. S. of the creation of societies of entrepreneurs. The state guarantees the right to freely enter into contracts. the draft promises free care only to those who lack the resources to pay for it. In contrast to the USSR Constitution (art. It protects accused persons against double jeopardy and self-incrimination.

Political parties are not to have organizations within the public service. 4. However. Managing the money supply. Customs and border control. Standards for measurement and time. 5. These are all functions which now belong to the all-union government. Preserving the unity of an all-Russian market. which oppose the law-governed state. The federation is composed of national-territorial formations (republics) and regions (also referred to as federal territories).) 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. but proceeded to work out the details of the new federal structure. Defense and the armed forces. There is to be no official state ideology. The federation is to be based on political and ideological pluralism (plyuralizm) which is said to rule out totalitarianism or any form of dictatorship. and public organizations and political parties. security services and federal police. in the armed forces. 6. However. In the case of civil. Foreign policy and inter-state relations. the document provides that the Russian Federation can voluntarily . and of these the following are of special interest: 1. which are both referred to as the "subjects" of the federation. If they are in fact assumed by the Russian republic. and a one-party system is explicitly outlawed. Neither the state nor any political party is to exercise a monopoly over the media. education. transform itself into a republic. The draft provides for a multiparty system. the draft allows the banning of political parties which propagate racial. national. oblasts. religion. the draft provides that the federation has jurisdiction in criminal law.[9] The USSR is never mentioned in the working draft. and districts. any territory can. economic and procedural law. Control over natural resources. 7. The draft lists twenty-four functions which are reserved to the federation. Under the heading of "civil society" the draft also discusses the family. and any republic can become a territory. and all political parties are promised equal access to state-owned radio and television. and is put under the special protection of the state. Activities in the cosmos. Protection of copyright and patents. labor. and the territories are presumably the oblasts and krais. culture. 3. through a referendum. In addition. the adoption of this constitution would mean the disappearance of the USSR as we know it. the media. as at present. However. This provision follows the present model. The family is described as the natural nucleus (yacheika) of society. religious. or class hatred. 2.state or local government. writing specific law codes in these spheres is left to the national or regional governments.[8] The constitution writers did not wait for this treaty. where the all-Union Supreme Soviet enacts "fundamental laws" but the drafting of codes is left to the union republics. including foreign currency. Censorship is forbidden. 9. which employ force or threaten the forcible overthrow of the government. The republics presumably are the present-day autonomous republics. are defined by law. the federation lays the foundation. (An alternate version would add state enterprises and educational institutions to this list. or in the police.

The President has a veto power over legislation. Is the commander in chief of the armed forces. Every subject. The Russian language is to be the official language of the federation. In version B. he must act on legislation within fifteen days. Removes ministers and other officials. THE ORGANIZATION OF THE STATE The experts were divided on the role and functions of the President. subject to approval of Parliament. can choose a different official language for its own territory. Version A provides for a presidency more or less on the French model. 10. When there is a danger of attack. The role of the court in this process is not clear. In version A the President appoints a premier. and a veto can be overridden by a two-thirds vote of each house of Parliament. 4. According to version A. Version A also provides that the President. the President's veto can be overridden by a simple majority. 9. and other officials. The functions of the President which are common to both versions are the following: 1. He is also empowered to ask the house for a vote of confidence in the government. and the President can be removed by a two-thirds vote. after consultation with the House of People's Representatives. and is limited to two terms in office. orders the armed forces into action. or merely gives an opinion. ministers. Subject to the approval of Parliament. Guarantees the proper execution of the Constitution and the laws. subject to the approval of Parliament. 2.enter into a commonwealth or union with other sovereign states. If the presidential office is vacated for any reason the Vice President assumes the office of President for the . 6. The Russian Federation would reserve to itself the right to secede from any such union. subject to approval of Parliament. subject to approval of Parliament. The President. who presides over a government that is responsible to parliament. Either house of parliament can impeach the President by a two-thirds vote. appoints the chairman and members of the Constitutional Court and the Supreme Court. Guides the execution of foreign policy and concludes treaties. In the event of attack. the President is not only chief of state but also head of the government. however. In version B. and so section 5 of the draft is given in two versions. Signs and promulgates laws of the Federation. The case is then heard by the Constitutional Court. The draft does not specifically say whether the court can terminate the impeachment process by acquitting the President. while version B offers an Americanstyle presidency. 7. whose primary function is to preside at joint sessions of the parliament. 3. Represents the Federation in internal and international affairs. but the process is complex. appoints the premier. The President can be removed from office by impeachment. The Vice President can act for the President during temporary periods of absence. 8. 5. A and B. the President of the Federation. ambassadors. The President is to be elected by popular vote for a four-year term. The draft also provides for a Vice President. calls for a partial or general mobilization. Declares a state of emergency. The functions of chief of state are to be vested in a new official. The final decision is taken by the other house.

The draft proposes a Constitutional Court and a Supreme Court. or administrative law. The draft devotes almost three pages to the President's emergency powers. The Electoral System. The draft provides for two different electoral systems. either locally or throughout the federation. The State Duma consists of two houses--a House of People's Representatives. In countries where it has been tried. Parliament. It is empowered to decide the constitutionality of statutes or other legal enactments. Version II provides for proportional representation. The country is to be divided into a number of multi-member districts. Only this house can dismiss the government by a no-confidence vote. the premier is nominated by the President and confirmed by the House of People's Representatives. and a Federal Council. in which case the President must call a new election for that house. civil. but empowers Parliament to set up other. or election by the legislature of the territorial units that they represent. The Courts. Other federal judges are appointed by the President alone. If the vice presidency becomes vacant a new Vice President can be elected by the parliament. except that Parliament may set a compulsory retirement age. and in each district deputies are to be elected by a list system. Version A also provides that legislation originates in the House of People's Representatives. Judges of these two top-ranked courts are appointed by the President with the approval of Parliament. to list their order of preference among the candidates. The draft has tried to overcome this buy allowing individuals to get their names on the list without party approval. the list system has strengthened individual parties by making it virtually impossible to get elected without a party endorsement. and by allowing the individual voters. Judges are to be appointed for life. Either house can dissolve itself. It has additional powers. but it would also confront the voter with a very complicated set of choices. and elections are to be held on the second Sunday of March every fourth year. The working draft offers two plans for election of the Federal Council-either direct election by the people. This system would theoretically allow independent candidates to win election. if they choose. As already noted. .[10] The Constitutional Court consists of eleven judges appointed by the President and confirmed by Parliament. and such a declaration can remain in effect for only thirty days. including the right (at the request of Parliament) to give authoritative interpretations of the Constitution. Emergency Powers. The Federal Soviet consists of an equal number of representatives from each subject of the federation. However. inferior courts.remainder of the term. both of the Federation and of its subjects. In version B the Parliament is elected for a fixed term. the Constitutional Court "participates" in the impeachment process. and to determine the competence of the President to exercise his office. the Parliament is responsible for forming a government. Version I provides for singlemember constituencies which are to be approximately equal in size. Parliament must be notified within seventy-two hours. If the President declares a state of emergency. The Supreme Court functions as the final appeals court in cases of criminal. The House of People's Representatives is directly elected by the people. In version A.

an amendment must be formally proposed to the Parliament. CONCLUSION This working draft is more than a constitution. Ratification and Amendment. Soviet criminal law presently defines the death penalty as an exceptional measure.Parliament can extend the emergency powers. Proekt rabochei gruppy i gruppy ekspertov Konstitutsionnoi komissii RSFSR .s parallel'nymi mestami i variantami. The amendment is formally adopted if two-thirds of the subjects agree to ratification. Sovetskaya Rossiya. 1990. This document is dated Oct. 2. Hereafter the document is referred to as a working draft. and certain crimes committed in wartime. June 14. but only for thirtyday periods. NOTES 1. Osnovy ugolovnogo zakonodatel'stva Soyuza SSR i soyuznykh respublik (1959). as organic law. It is also a declaration of independence. 6. illegal . operating under this proposed constitution. and it also lays down a rule that the "basic principles" of the constitution cannot be changed. where the President is only a ceremonial head of state and real executive power is vested in the head of government. The constitution is to take effect only after ratification by a national referendum. the draft is far too long for an effective constitution. 3. or the President. Even if the federation chose to exercise its right to enter into a commonwealth. would be an independent and sovereign state. art. 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. the constitution of 1978 is void. Large sections of the document could be left for enactment by the new parliament. and during a state of emergency the Constitution cannot be amended and the election laws cannot be changed. 22. art. the parliament can act. The Russian Federation. It ought to give consideration to a third model--the German model. the resulting union would only be a loose confederation. The draft provides for an amendment process which is slow and cumbersome. 76) provides that USSR laws are binding on republic territory. Six months following the formal proposal. Before it finishes its work. However. Constitution of the RSFSR (1978). Then the amendment must be submitted to the subjects of the federation for ratification. 11. 1990. Sovetskaya Rossiya. Constitution of the USSR (1977). Konstitutsiya (osnovnoi zakon) Rossiiskoi federatsii. 4. 68. A state of emergency cannot be used to limit the powers of Parliament or the courts. art. and the proposal needs a two-thirds vote of both houses. First. 1990. since that constitution (art. June 17. 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 Russian commission must decide what kind of presidency it wants. the death penalty can be used to punish a variety of crimes -not only murder. The proposer can be a group consisting of one-fifth of the members of either house. The declaration in fact is not consistent with the republic constitution. but also counterfeiting. serious crimes against the state. Once the new constitution comes into force. 5. or by one million citizens. or a variety of others. However. 76.

8. bribe-taking. Articles 50 and 51 provide that the rights of free expression and association are granted in order to advance the interests of the system. Some members of the working group opposed the idea of a Constitutional Court. In the second version. 1990. July 20. . Family law is considered a separate branch of law in the USSR: the fundamentals are laid down in all-union legislation. 39 of the USSR Constitution provides that individual rights cannot be exercised in a way which damages the interests of society or the state. and there is a second version of this section which omits any mention of that court.dealing in foreign currency. 10. the Supreme Court rather than the Constitutional Court would be involved in the impeachment process. Art. 9. 7. and each republic has a code of family law. This sphere of law is not mentioned in the draft. Sovetskaya Rossiya. and aggravated rape.