History in the making: How Russia’s Constitution was adopted
History in the making: How Russia’s Constitution was adopted
Russia’s first ever Constitution drafted by representatives from a wide range of political forces came into being twenty-five years ago, in 1993
The well-known events leading up to the adoption of the Russian Constitution by a national referendum on 12 December 1993 were quite dramatic. Between 1990 and 1993, the struggle for the Constitution was a key storyline underscoring both political and social life in Russia.
The Constitutional Commission tasked with drawing up the Fundamental Law had been set up in June 1990, right after the RSFSR Congress of People’s Deputies passed the Declaration of National Sovereignty of the Russian Federation. The Commission was chaired by Boris Yeltsin who was then Chairman of the Russian Supreme Soviet, but effectively it was headed by its Secretary Oleg Rumyantsev, a Supreme Soviet deputy from Moscow’s Kakhovsky constituency.
I joined the Commission in late 1990 as head of its secretariat, invited by Rumyantsev on the recommendation of Valery Zorkin who happened to be my postgraduate thesis tutor at the time. Professor Zorkin was already head of the Commission’s expert group, continuing in the position until elected as the first President of the Constitutional Court of Russia.
Formally, there were about a hundred deputies on the Commission, though only 12-15 persons made up the working group actually drafting the Constitution. The Commission’s driving force was its Executive Secretary, Oleg Rumyantsev. Other deputies immersed in the drafting included Victor Sheinis, Yuri Ryzhov, Boris Zolotukhin, Fedor Shelov-Kovedyaev, Evgeny Ambartsumov and Sergey Shakhray, and among experts there were Boris Strashun, Leonid Mamut and Vladimir Lafitsky. The Constitutional Commission’s purpose was to shape a Russian constitutional model relying on global experience.
An open system
By early 1991, the first draft was ready. The working group, however, was divided almost equally over the optimal system of government for Russia. One group advocated a presidential republic modelled after the USA, where the government would be formed by the president as the chief executive authority and no government no-confidence vote by the parliament would be possible. Others were all for giving the parliamentary majority the chief role in appointing a government. Experts leaned towards the first scenario while some of the deputies in the working group tended to prefer the second. When the draft was first published in Argumenty i Fakty 1in many millions of copies, it offered a choice between these two systems. Commission Chairman Boris Yeltsin refrained from taking any decisions, obviously believing that specialists would arrive at the optimum model on their own.
And indeed, the working group managed to produce a trade-off solution within one year. The president was to have the status of the head of state, but could only appoint a government subject to the State Duma’s approval. The lower chamber was also granted the power to dismiss particular ministers by two thirds of members’ votes.
All the time, the Commission’s work was coming under left-wing radical criticism both within and outside. A Commission member, communist Yuri Slobodkin, invariably upbraided us for building up a legal basis for capitalism. We had arduous, yet nonaggressive, discussions within the Commission that were reported in Constitutional Herald, the Supreme Soviet’s official publication. There were quite heated debates around the autonomous republics that were seeking to become ‘sovereign states’ – a source of grave concern for all – and no unanimity about the status of either of the parliamentary chambers. I remember at one point Ruslan Khasbulatov suggesting that the upper chamber be named Senate rather than the Federation Council, but this idea failed to win support.
In parallel, in 1990-1992, amendments were being introduced in the then effective RSFSR Constitution of 1978. That work was led by Mikhail Mityukov and Sergey Shakhray who were also Constitutional Commission members.
Are all these details of particular importance now? I dare say everything is important because we have all seen how tiny details can subtly and imperceptibly affect the nature of the actual political regime.
The two drafts
In April 1992, the Congress of People’s Deputies approved key provisions of the draft new Constitution. And here the process lost momentum. Economic reform ground on heavily, and fiscal revenues were extremely low. Understandably, people were increasingly resentful about the agenda pushed forward by the President and his team – creating a new economy and new Constitution. At the same time, the conservative majority in the Parliament failed to offer any satisfactory alternative to the reforms. By all accounts, representatives of the two opposing camps should have sat down to negotiate and reach a consensus, agreeing, for instance, on pre-term elections, both presidential and parliamentary.
At that point Boris Yeltsin decided the Constitution ought to be finalised independently of the Congress. He continued as the Constitutional Commission Chairman until the autumn of 1993 but plenary sessions were chaired by Khasbulatov as the Deputy Commission Chairman.
In May 1993, the President published his own draft Fundamental Law, a rather hasty one, though generally reiterating our draft’s principal contents and structure. And then in June 1993 Yeltsin convened the Constitutional Assembly, its central figure being Sergey Shakhray, an ardent supporter of the President. The Constitutional Commission became an Assembly member. Discord had, however, already permeated the body of deputies, the Commission and even its office. Some of the deputies – Sergey Kovalev, Victor Sheinis, Fedor Shelov-Kovedyaev, Leonid Volkov and others – were prepared to go on working on the Constitutional Assembly. Others were dead set against that. I remember particularly Constitutional Herald editor Ilya Shablinsky asking my advice. Saying he had been invited to the Assembly as a presidential representative, he wondered whether he would then need to quit the editor’s office and the Supreme Soviet administration. I thought that was probably the proper way to do it. Admittedly, most of the Commission’s experts contributed to the Constitutional Assembly’s work. During the sessions, they essentially combined and adjusted the two Constitution drafts, one produced by the Commission and the other by the President.
I believe that Oleg Rumyantsev, who had devoted so much effort to the Commission draft, had the roughest time then. The first two chapters, Foundations of the Constitutional System and Human Rights and Freedoms, were incorporated in the final version almost without change, and so was the Federative Framework chapter, which, by then, had been incorporated in the Federation Treaty signed in March 1992 by the heads of the constituent entities of the Federation, thanks to the Constitutional Commission’s efforts. The Constitutional Assembly defined the system of government differently. Chapters 4–9 of the draft dealing with the arrangement of government authorities and Constitution amendment procedures were also largely based on the Constitutional Commission’s blueprints that had withstood vehement discussions in the Supreme Soviet.
The final version
What about the majority of the deputies? I believe they would have adopted the new Constitution at the next congress in November 1993, since the text the Constitutional Commission had been drafting for roughly three years was almost ready. Instead, the conservative majority decided to introduce a new set of amendments to the then effective Constitution of 1978. This time they intended to deprive the president of his core powers. I believe that was a wrong move, both strategically and tactically.
The new political flare-up resulted in the tragic and bloody showdown of September-October 1993 when the President dissolved the Parliament. It is difficult to forget the tank shooting at the parliament house at close range from the bridge. Responsibility for how things turned out rests, I believe, with both conflicting parties.
After the events of 3–4 October 1993, the draft Constitution approved by the Constitutional Assembly underwent several more amendments and clean-ups. In particular, it was set out that the president did not need the State Duma’s consent to dismiss a government (as required by the previous draft). It was also decided that the Federation Council would be formed by regional government authorities rather than elected. This version of the Constitution was then put to the referendum and gained popular support.
This is how our current Constitution was born. It can scarcely be described as a win-win compromise working for everyone. But it is the first Russian Constitution on which representatives from a wide range of political and social forces joined efforts and worked together using global constitutional experience. Should it be changed? Well, it may not remain rigid, if only for reasons of social development and the general evolution of the nation. Any change should, however, not affect the basic institutions of a democratic state, such as division of powers, rights and freedoms of people, etc.
No, the Constitution is not perfect: I would say the Parliament’s role in forming the government could have been more prominent. But I am extremely wary of the idea of institutional amendments, let alone replacing the Fundamental Law with a new one. After all, the evils and absurdities of today’s public life in our country can hardly be explained by inadequate constitutional rules.
I often hear it said that the Russian Constitution is moulded more on western examples and ignores national traditions, though I believe this is doublethink. Those saying so would hardly take it kindly if their constitutional rights and freedoms were violated, such as the right to seek redress in court or to take part in elections. Putting a written Fundamental Law in place does not automatically mean that a rule-of-law state has been created: the UK and Israel, for example, have no formal Constitution. A rule-of-law state is created when its people fully comprehend, share and embrace universal human values.
We should not forget how high a price was paid for the current Russian Constitution, and we should handle it with care and consideration.
1Argumenty i Fakty (‘Arguments and Facts’) – a weekly newspaper with a print run of over 30 million in the early 1990s.
If you would like to receive our legal alerts and updates highlighting current legal issues relevant to your areas of interest and providing expert commentary by our lawyers, please click on "Sign Up" and fill out the form.