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Stanislav Markelov: Don’t Read this Book

In commemoration (or perhaps, in mourning) of this weekend’s anniversary of the Russian constitution, we offer an exclusive translation from human rights lawyer Stanislav Markelov from RuleofLaw.ru.

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Don’t Read this Book
By Stanislav Markelov

There are books that are an element of ritual irrespective of their content. Earlier, as they say under the tsar Gorokh [in times immemorial–Trans.], every peasant always had a Psalter in his hut, although the greater part of them did not know how to read.

Today the same kind of ritual character is had by citing the Constitution. But even ritual has a tendency to break down when it starts to impede real life. And so they have easily changed the Russian Constitution with one wave of the magic wand, or more precisely one presidential speech. For some reason, everybody paid attention to why this was done, and least of all thought about the degree of significance of that document, which it is so easy to change. After all, it was not long ago at all that the head of the ruling party in the St. Duma, Gryzlov, had declared that «United Russia» will never allow for any changes in the Constitution. Apparently the time has come to break down the ritual formulas of fidelity to the Fundamental Law and to cast the idol into the dirt, as impeding real life and the ruling course.

After such a session of struggle with idolatry there inevitablyarises the question, is our Constitution worthy of the halo ofsanctity, so persistently and forcibly stuck onto it? Having given thissome thought, the first thing that came into my head was a recollectionfrom my professional practice.

One evening, when I had already come home, an event unprecedented inmy legal work took place. All of a sudden, I had a need for the RussianConstitution. The last time I had needed this document was when I wasin college, when the newly-appeared declaration of the victoriousPresident was the subject of numerous jokes by the law students. Sincethen, as it should be for any practicing jurists, we turned to it onlyfor purposes of ritual remembrance, immediately moving on to other lessdeclarative and more real-life normative acts. But here, all of asudden…

As ill luck would have it, the Internet wasn’t working at home, butby morning I had to write a story line for application to theConstitutional Court, so I began to burrow agitatedly in my huge lawlibrary. Having dug through to its furthest fringes, I understood thatfor lack of necessity I had never actually had this document, i.e. moreprecisely, I’d used to have it, but only during the period of study incollege, as an almost satirical legal handbook.

I was forced to get on the telephone. The first question in responseto 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 thetext of that same Constitution of ours in a general anthology. I seemto recall that he even needed to cut the pages open.
It was after this that the thought came to me, why is this book neededat all? I.e. not the fundamental law, as a fact – I mean, we’re not inAmerica and nobody is denying its necessity – but specifically thatsame thin little book, the one that had appeared on the wave, I’ll putit mildly, of the not entirely lawful consequences of theSeptember-October events of the year 1993.

By the way, there exists a multitude of political, memoir, and evenhistorical research and assessments of that tragedy… but legal onesdon’t exist at all. Apparently everything that was going on back thenlooks way too unsightly from a legal point of view. The only brightspot is that when the Supreme Soviet attempted to remove the Presidentfrom his post, it declared that it was doing this on the basis ofArticle 121. In the heat of political passion having forgotten tomention on the basis of Article 121 of what so radical an action wasbeing undertaken. All jurists practicing in Russia turn to theConstitution last of all, and first of all naturally grabbed theCriminal 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 deceasedPresident to modern-day legal reality, all the more so given that we’vegot to live to this day on the basis of the legal consequences of thosesame times when an ukase of the President was more important that anylaws, including the Constitution.

When in one of the courts my extremely law-abiding defense clientattempted 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 notsubject 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 andnot very immediate, despite what is actually written in it? The factssure seem to bear witness in favor of the procurator, and not my clientin 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 certainevent. In the given instance, as a need to secure the victory of thepresidential vertical and its retinue in the September-October putschof the year 1993. And to mark the victory in this putsch. The lastevent together with the writing of the Constitution, it seems, tookplace at one and the same time. This circumstance can be checked, if weshould all of a sudden decide to look at the Constitution not as holyscripture, but to really try and read its text.

Let’s start with the right to labor, so not beloved of liberal legalscholars. Article 37 proclaims right away that «labor is free». Whatthis is, is something that a psychiatrist-doctor more likely mustexplain, and not a jurist. If we go further along this same path, thenthe next article ought to have been begun «rest is also free», «whilesocial security is completely free from each and every of us». Why isit that labor all of a sudden turned out to be free, but not the workerand from what is it so free, remains an unsolved riddle, which indeedadds interest in the reading of this opus.

People will object that this is a lead-in to the enshrined right tolabor. Excuse me, what right, where did you see it? How can anattentive reader object, part 3 of that same article: «Everybody shallhave the right to labor in conditions that meet the requirements ofsafety and hygiene». And now please note the absence of a comma [afterthe word “labor”] here. In our country there is a right to conditionsof labor, but nobody’s promising us the right to labor.

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

By the way, we won’t suspect the authors of deception and evilintent. Their intentions have a completely genuine and sincerecharacter. Here, for example, in Art. 74 they genuinely write: «theestablishment of customs borders is not permitted on the territory ofthe Russian Federation». The intention of the authors is absolutelycomprehensible, so that for example between Vladimir and Ryazan Oblastssome well-intentioned sort wouldn’t unintentionally put up a newcustoms post, something that was very relevant at the beginning of the90s. And now imagine if you will the border of the RF with any othercountry, let us say with Finland. Where is our customs post found? Andwhere do they place the notation about leaving or arriving in ourcountry? By sheer chance, does this happen to take place not on theterritory of the RF? Formally, the customs border coincides with thestate [border], and even then not always, for example with Belarus itwas soon removed except for transit, which did not impede thelaw-enforcement organs from imputing the article «contraband» forcrossing the absent customs post. But customs fees, duties, just likethe actual location of the customs posts, is always levied inside theterritory of the country. So what, are we supposed to now recognize thefunctioning of all customs posts as unlawful, if we agree to recognizethe Constitution as an act of direct action?

The separation of powers in the text of the Constitution – this istruly the swansong of Russian democracy. More precisely, its end,inasmuch as separation of powers doesn’t exist in nature and thegeneral formula of this so-called separation pursuant to theConstitution can be formulated in one phrase: «All the power to one(the President), everything else exists formally». I understand that inour country, they’re used to making the Constitution – just like anyother normative document – for concrete people. True, these people havea habit of getting old, declining, losing authority, and in the enddying, while the people, whom no reforms can destroy, are then forcedto live with the documents that remain behind.

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

If you considers such a proposal a provocation and madness, then Iwon’t completely agree with you. After all, I’m not proposing that youclarify the authority and composition of the Administration of thePresident of the Russian Federation, and how it fits into the Russianmechanism of power. According to our Constitution, all its role in theRussian system of power is defined by a single line, specifically item«i» of Art. 83, that the President of the RF «shall form anAdministration of the President of the Russian Federation». What doesit 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 statecould give you a straight answer. But then every bureaucrat from theRussian power apparat could read a lecture about this organ. True, aplace for the Constitution, it goes without saying, will not be foundin it.

It is curious that the Security Council of the RF has been honoredwith exactly the same kind of mention according to the text of theConstitution. But it at least has a reference rule saying that itsstatus shall be determined by another Federal Law. Consequently, forthe Security Council there has to be a separate Federal Law, but whatthe Administration of the President is to be guided by is somethingthat a mere mortal law-abiding person isn’t supposed to know evenformally. 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 thevictors of the tragedy of the year 1993 themselves respect it. A monthafter the adoption of the Constitution, the power managed to violatedit – twice: when dissolving the Lensoviet and when legitimizing theexistence of Russian troops in Abkhazia. I’m not touching upon, thecorrectness or incorrectness of the given actions, what interests me isthe degree of respect for a document they themselves had just adopted.Moreover, adopted without taking into account the elaborations of theconstitutional commission, which for several years prior to this hadbeen attempting to come up with a new Russian Constitution. Oh yes, andit was headed by deputy O.G. Rumyantsev, who in the days ofconfrontation took the wrong side. Of course, for the constitutionalprocess – this event is primary and, as they say, not subject to appeal.

In general, I recalled the times of happy collegiate youth thatevening. In place and in time, they happened to coincide with thoseevents that portended the appearance of this praiseworthy document,since the Moscow State Juridical Academy is found but one block awayfrom 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 torecall the creators of the foundational Russian legislative act andtheir unforgettable victorious opus.

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