Constitutional Development in Present-Day Russia
By Jennifer Giglio
"The issue of constitutional development is at the center of modern Russian history, stated Nikolai Bondar, Justice, Constitutional Court of the Russian Federation, at a 26 September 2000 lecture at the Kennan Institute.
The Russian constitution of 1993 has allowed for basic democratic achievements during the last decade, argued Bondar. Russia today finds itself at a constitutional crossroads. Ten years ago, Russia opted for democracy and freedom. Now that transformation must be adjusted to current conditions and set within a contemporary constitutional framework. This does not necessarily mean that a new constitution must be adopted; rather, the potential which is inherent in the 1993 constitution must be realized.
The 1993 constitution was based on legal positivism and a natural law philosophy. Each article of the constitution should enjoy the full scope of judicial protection. The primary task of the Constitutional Court is to disclose and develop the constitution's democratic potential. Bondar claimed that the constitution must be adjusted according to the development of the state.
Legal and constitutional nihilism has been a constant feature of recent Russian history. A total of four constitutions were adopted during the period of Soviet rule. In spite of their number, they failed to establish the rule of law in the country and the nihilist attitude has not been overcome. During the Soviet period, the constitution was widely perceived as a political document which affirmed the victory of one class over another. A constitution which pits one segment of society over another cannot successfully dictate the main law of the land.
According to Bondar, the political and legal potential of revolution have been exhausted in Russia. All of the recent stages in the constitutional development of Russia were marked by radical revolutionary transformations. Experience shows that such transformations rarely promote the rule of law--more often, they disrupt it. Justice Bondar is of the belief that constitutional transformations should be evolutionary rather than revolutionary.
In addition, Bondar claimed that Russia cannot develop constitutionally in isolation from the rest of the world. It must utilize the best of the world's constitutional experience. However, even the best of the constitutional experience of other countries cannot successfully be put into practice in Russia unless the national experience and the peculiarities of the Russian state and history are taken into account.
One of the many issues which needs to be addressed by the Constitutional Court is that of federative relationships. Federalism in Russia revolves around the relationship between the federal center and the regions. Bondar argued that President Putin's attempts at re-centralization must be balanced with the provision of regional autonomy. The negotiation of recent agreements between the central administration and regional authorities has reinforced the legal asymmetry of the various members of the Russian Federation. It has also enfeebled the central government and prevented it from providing for a single legal and constitutional space within the borders of the Russian Federation. According to Bondar, legal separatism has emerged--with many regions adopting constitutions and laws which directly contradict the Russian national constitution. This can be viewed as a latent or, in some cases, even an open form of political irredentism and must be resolved within the existing constitutional framework.
Bondar remarked that the development of the judiciary is the most important form of constitutional development in Russia. Russia has witnessed enormous changes over the past few years. The 1993 constitution proclaimed the judiciary to be equal to the legislative and executive branches of government. One of the hallmarks of the constitution was the creation of the Constitutional Court of the Russian Federation. The Constitutional Court evaluates laws, presidential decrees, and other edicts for their conformity to constitutional standards. The decisions of the Constitutional Court are mandatory and cannot be appealed. The Court has the responsibility to mediate arguments between various bodies of state power; to interpret the articles of the constitution; and to hear appeals from citizens whose rights were violated, based on the unconstitutionality of a law. The Court provides for the constitutional integrity of the state, but at the same time ensures the protection of the human rights of private citizens.
Bondar concluded by stating that constitutional development should proceed along the path of difficult and profound political, economic, and social transformations which will lead to the constitutional resurgence of Russia.