[...prompted by the submission to the State Duma on May 22, 2024, of a draft federal constitutional law "On the Constitutional Assembly"[1]]
The recent submission to the State Duma by 30 deputies of a draft Federal Constitutional Law (FCL) "On the Constitutional Assembly" has compelled me to reflect on our path toward constitutionalism.
Thirty years ago, alongside colleagues from the former Working Group of the Constitutional Commission—V.I. Lafitsky, B.A. Strashun, and V.L. Sheinis—I helped prepare the first version of such a bill. Shortly after, I published commentary on this initiative in what was then still independent nationwide press (yes, such a thing existed...)[2].
Given current realities, the issue warrants closer examination.
Historical Context and Missed Opportunities
The 1994 proposal to convene a Constitutional Assembly was no accident. It was intended to address the devastating consequences for Russian constitutionalism following the 1993 coup, which predetermined much of what unfolded in subsequent decades.
A coordinated revision of the 1993 Constitution could have been achieved in the medium term:
·1995: Reaching consensus among politicians, civil society, interest groups, and regions.
·1996: Adopting the law and electing Assembly members to forge national unity around the Constitution as a foundational social contract.
Instead, the deep state opted to reappoint Yeltsin, touting his "firm handshake"...
Another opportunity arose in 1998–1999, when Primakov-Maslyukov’s effective government emerged, the Duma investigated grounds for Yeltsin’s impeachment, and Prosecutor General Yu.I. Skuratov pursued high-level abuses of power. A window opened for the Assembly to advance constitutional order and rule of law—but the succession mechanism and corporate governance of the ruling elite prevailed.
The Current Initiative: Risks and Necessities
The newly proposed FCL aims to clarify the status and procedures of this dormant constitutional body. But is this timely?
Key considerations:
1. Post-War Priority: Such foundational work belongs to an era of post-conflict recovery and reconciliation, requiring resolution of core tensions between autonomous power and popular sovereignty.
2. Strategic vs. Tactical: The Assembly’s purpose must transcend political expediency—ensuring constitutional legitimacy, not cementing monopolies on power, property, or ideology.
3. Ethical Foundations: Legal frameworks must embody freedom, justice, solidarity, and dignity to enhance Russia’s competitiveness as a modern state.
Structural Challenges
·Composition: The draft law blends elected and appointed members—a reasonable compromise between 1994’s competing models (direct elections vs. Federal Assembly/subject delegations). Yet the erosion of free elections (e.g., recent exclusion of opposition figures like B.B. Nadezhdin) raises concerns about the Assembly’s representativeness.
·Separation of Powers: The Constitution rightly distinguishes legislative and constituent authority. Merging the Duma into the Assembly risks undermining both institutions. Global practice shows few examples of such fusion.
·Civil Society Representation: Greater inclusion of non-partisan voices (e.g., interest groups, legal scholars) is vital to counterbalance party dominance. The current draft overweights political parties, threatening ideological monopoly.
A Forward-Looking Proposal
The Assembly’s optimal outcome could involve:
·Preserving Chapters 1, 2, and 9 (foundational principles, rights, amendments).
·Adding six new chapters (e.g., civil society guarantees, public power objectives, fiscal federalism).
·Revising Chapters 3–8 (governance structures), with safeguards against hyper-presidentialism entrenched in the 2020 amendments.
Conclusion
The FCL "On the Constitutional Assembly" could offer a legal framework for constitutional renewal—but only after genuine public deliberation, impossible under perpetual "special governance regimes." Preparing for this dialogue is essential, particularly with Russia’s emerging middle class demanding constitutional normalcy amid diversity.
Let the Assembly remain a tool for national reconciliation, not another top-down maneuver. As the Constitution—like Russia itself—is singular and indivisible.
Happy Russia Day!
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