Stanislav Markelov: Don't Read this Book

After such a session of struggle with idolatry there inevitably arises the question, is our Constitution worthy of the halo of sanctity, so persistently and forcibly stuck onto it? Having given this some thought, the first thing that came into my head was a recollection from my professional practice.

One evening, when I had already come home, an event unprecedented in my legal work took place. All of a sudden, I had a need for the Russian Constitution. The last time I had needed this document was when I was in college, when the newly-appeared declaration of the victorious President was the subject of numerous jokes by the law students. Since then, as it should be for any practicing jurists, we turned to it only for purposes of ritual remembrance, immediately moving on to other less declarative and more real-life normative acts. But here, all of a sudden...

As ill luck would have it, the Internet wasn't working at home, but by morning I had to write a story line for application to the Constitutional Court, so I began to burrow agitatedly in my huge law library. Having dug through to its furthest fringes, I understood that for lack of necessity I had never actually had this document, i.e. more precisely, I'd used to have it, but only during the period of study in college, as an almost satirical legal handbook.

I was forced to get on the telephone. The first question in response to my request from the same kind of practicing jurists was standard: «Whatever do you need it for?»

Finally, hearkening to my entreaties, the fifth or sixth colleague, being a specialist on international law, discovered that he had the text of that same Constitution of ours in a general anthology. I seem to recall that he even needed to cut the pages open.
It was after this that the thought came to me, why is this book needed at all? I.e. not the fundamental law, as a fact - I mean, we're not in America and nobody is denying its necessity - but specifically that same thin little book, the one that had appeared on the wave, I'll put it mildly, of the not entirely lawful consequences of the September-October events of the year 1993.

By the way, there exists a multitude of political, memoir, and even historical research and assessments of that tragedy... but legal ones don't exist at all. Apparently everything that was going on back then looks way too unsightly from a legal point of view. The only bright spot is that when the Supreme Soviet attempted to remove the President from his post, it declared that it was doing this on the basis of Article 121. In the heat of political passion having forgotten to mention on the basis of Article 121 of what so radical an action was being undertaken. All jurists practicing in Russia turn to the Constitution last of all, and first of all naturally grabbed the Criminal Code. And... oh, horrors!... what hath Boris Nikolayevich done? Who was he accusing of this?

Article 121 of the Criminal Code at that time punished for «pederasty».
But let us return from the historical acts of the currently deceased President to modern-day legal reality, all the more so given that we've got to live to this day on the basis of the legal consequences of those same times when an ukase of the President was more important that any laws, including the Constitution.

When in one of the courts my extremely law-abiding defense client attempted right in the courtroom to read the text of the Constitution, he was interrupted by the commanding admonishment of the procurator: «The Constitution - is a framework document and therefore is not subject to direct application».

Receding from the raging battle of that trial, I thought to myself, could it be that the state defender of legality was right? And that, indeed, the Constitution - is a document of not very direct action and not very immediate, despite what is actually written in it? The facts sure seem to bear witness in favor of the procurator, and not my client in this dispute.

And so, just the facts. Upon its adoption, the Constitution was an «ad hoc» document, i.e. a document that had appeared for a certain event. In the given instance, as a need to secure the victory of the presidential vertical and its retinue in the September-October putsch of the year 1993. And to mark the victory in this putsch. The last event together with the writing of the Constitution, it seems, took place at one and the same time. This circumstance can be checked, if we should all of a sudden decide to look at the Constitution not as holy scripture, but to really try and read its text.

Let's start with the right to labor, so not beloved of liberal legal scholars. Article 37 proclaims right away that «labor is free». What this is, is something that a psychiatrist-doctor more likely must explain, and not a jurist. If we go further along this same path, then the next article ought to have been begun «rest is also free», «while social security is completely free from each and every of us». Why is it that labor all of a sudden turned out to be free, but not the worker and from what is it so free, remains an unsolved riddle, which indeed adds interest in the reading of this opus.

People will object that this is a lead-in to the enshrined right to labor. Excuse me, what right, where did you see it? How can an attentive reader object, part 3 of that same article: «Everybody shall have the right to labor in conditions that meet the requirements of safety and hygiene». And now please note the absence of a comma [after the word "labor"] here. In our country there is a right to conditions of labor, but nobody's promising us the right to labor.

If what is meant is hygiene and safety, i.e. labor protection, then about this is already written in Art. 7 of the Constitution and the authors are engaging in conscious tautology. What wouldn't one do to dazzle and delude the rapt champions of democracy in the year 1993, so that they could declare with a clean conscience that we've got the right to labor, and indeed any other right.

By the way, we won't suspect the authors of deception and evil intent. Their intentions have a completely genuine and sincere character. Here, for example, in Art. 74 they genuinely write: «the establishment of customs borders is not permitted on the territory of the Russian Federation». The intention of the authors is absolutely comprehensible, so that for example between Vladimir and Ryazan Oblasts some well-intentioned sort wouldn't unintentionally put up a new customs post, something that was very relevant at the beginning of the 90s. And now imagine if you will the border of the RF with any other country, let us say with Finland. Where is our customs post found? And where do they place the notation about leaving or arriving in our country? By sheer chance, does this happen to take place not on the territory of the RF? Formally, the customs border coincides with the state [border], and even then not always, for example with Belarus it was soon removed except for transit, which did not impede the law-enforcement organs from imputing the article «contraband» for crossing the absent customs post. But customs fees, duties, just like the actual location of the customs posts, is always levied inside the territory of the country. So what, are we supposed to now recognize the functioning of all customs posts as unlawful, if we agree to recognize the Constitution as an act of direct action?

The separation of powers in the text of the Constitution - this is truly the swansong of Russian democracy. More precisely, its end, inasmuch as separation of powers doesn't exist in nature and the general formula of this so-called separation pursuant to the Constitution can be formulated in one phrase: «All the power to one (the President), everything else exists formally». I understand that in our country, they're used to making the Constitution - just like any other normative document - for concrete people. True, these people have a habit of getting old, declining, losing authority, and in the end dying, while the people, whom no reforms can destroy, are then forced to live with the documents that remain behind.

So, right now these people can spend a long time trying to figure out what federal districts are and how they fit into the system of regional powers of the RF. The main thing in all this guesswork is not to pay attention to the Constitution, because there simply aren't any federal districts in there, and what this is our fundamental law knows not. And now try to challenge the existence of the federal districts in any court on the basis of the texts of the Constitution; I will have a long laugh at your attempt.

If you considers such a proposal a provocation and madness, then I won't completely agree with you. After all, I'm not proposing that you clarify the authority and composition of the Administration of the President of the Russian Federation, and how it fits into the Russian mechanism of power. According to our Constitution, all its role in the Russian system of power is defined by a single line, specifically item «i» of Art. 83, that the President of the RF «shall form an Administration of the President of the Russian Federation». What does it do? What's it for? And why is this «secret chancellery» [political security organ that existed in Russia 1718-1801--Trans.] needed at all? Not a single jurist specializing in matters of state could give you a straight answer. But then every bureaucrat from the Russian power apparat could read a lecture about this organ. True, a place for the Constitution, it goes without saying, will not be found in it.

It is curious that the Security Council of the RF has been honored with exactly the same kind of mention according to the text of the Constitution. But it at least has a reference rule saying that its status shall be determined by another Federal Law. Consequently, for the Security Council there has to be a separate Federal Law, but what the Administration of the President is to be guided by is something that a mere mortal law-abiding person isn't supposed to know even formally. And here you have a truly "secret chancellery".

I know what they'll answer me, something like: «the law is harsh, but it's the law». Even if this law is stupid and can not be applied. But one can judge about the attitude towards this lawmaking by how the victors of the tragedy of the year 1993 themselves respect it. A month after the adoption of the Constitution, the power managed to violated it - twice: when dissolving the Lensoviet and when legitimizing the existence of Russian troops in Abkhazia. I'm not touching upon, the correctness or incorrectness of the given actions, what interests me is the degree of respect for a document they themselves had just adopted. Moreover, adopted without taking into account the elaborations of the constitutional commission, which for several years prior to this had been attempting to come up with a new Russian Constitution. Oh yes, and it was headed by deputy O.G. Rumyantsev, who in the days of confrontation took the wrong side. Of course, for the constitutional process - this event is primary and, as they say, not subject to appeal.

In general, I recalled the times of happy collegiate youth that evening. In place and in time, they happened to coincide with those events that portended the appearance of this praiseworthy document, since the Moscow State Juridical Academy is found but one block away from the white house, right through the zoo. In this is the zoo, looking through a mug of beer at its inhabitants, was the best place to recall the creators of the foundational Russian legislative act and their unforgettable victorious opus.

Well, and to those who are nevertheless far from the inhabitants of the zoo, even if only geographically, I can recommend what's written in the title.