Moskovsky Komsomolets, 1997
Grave Legal Consequences
A Justice's Opinion
Special comments on possible integration of Russia and Belarus offered specially to MK by ERNEST AMETISTOV, a Justice of the Constitutional Court of Russia.
Close integration may jeopardize human rights
First of all, today it is not clear what specific forms of integration we are talking about. The message of the President of the Russian Federation to the President of Belarus about the deepening of integration processes among the two countries in particular stressed the need to create, by the end of 1997, a unified regulatory framework, and a budgeting and monetary-crediting system of the two countries; introduce a single currency of the commonwealth of the two countries; and initiate a step-by-step process of building its transnational governing bodies. And, as press secretary of the Russian president has explained, with the positive results of national referendums this may also involve the forming of a new transnational government.
The legal consequences of the above integration may range from the set-up of a new interstate association to the creation of a new sovereign state. The current Constitution of the Russian Federation is not adaptable to the creation of a new state as it was drafted in Russia and for Russia. In its essence our Constitution does not provide for the transformation of the Russian Federation into anything that may amount to a new state with a new name and a new governing structure created as a union with another country. If we talk about the creation of a new interstate association (commonwealth) with a higher degree of integration of both economic and legal systems than is currently envisaged by the Association of Russia and Belarus, then we can refer to Article 79 of the Constitution of the Russian Federation, which effectively enables RF to participate in interstate formations and delegate to them some of its authorities in accordance with international agreements. Note, however, that this provision is subject to satisfaction of the following two important conditions: such an association (commonwealth) should not infringe on our human and civil rights and contradict the fundamental principles of the constitutional system of the Russian Federation.
The formation of a transnational government of the commonwealth and possibly certain transnational legislative bodies would directly affect the fundamental provision of Chapter I of the RF Constitution bearing on the state sovereignty. Acts of the above transnational bodies should inevitably prevail over the federal laws and the Constitution itself as otherwise they make no sense. But this would immediately cast a doubt on the supremacy of the Russian Constitution in all regions of Russia, as supremacy presupposes the absence of any other prevailing acts in effect in the same regions. Also questionable would be a fundamental provision of Article 3 of the RF Constitution stating that the only guarantor of sovereignty and the source of authority in the Russian Federation are the multinational people of the Russian Federation. Should the new transnational bodies of the commonwealth be created this would come into variance with the above provision in that the source of authority in the Russian Federation would not only be the people of the Russian Federation but also the people of Belarus (if, of course, these bodies would express the will of either people).
The creation of the commonwealth's transnational governing structures and unification of the legislation would require the revamping of other Constitutional provisions, including those defining the scope of authority of the supreme bodies in the Russian Federation (i.e. Chapters 4-8 of the Constitution).
Another question: could a closer integration with Belarus jeopardize human and civil rights in the Russian Federation? Let us refer to the Constitution: "Man, his rights and liberties are the supreme value. Recognition, observance and safeguarding of the human and civil rights and freedoms is the duty of the State". The above provision included in Article 2 of the Constitution forms one of the basic principles of the constitutional system of the Russian Federation. It means that any activities of the state and its bodies whether in home or foreign policy should, first and foremost, be in line with the observance and protection of the rights, freedoms and interests of the citizens of Russia (as well as foreigners and individuals without citizenship living in Russia). In this particular instance it means that in planning or undertaking any steps in the direction of a closer integration with Belarus - be it in the form of an interstate association, the more so, a new union state - the President, the Federal Assembly and the Government of the Russian Federation have to weigh up all socioeconomic, political and whatever other consequences of the above steps for the people of the Russian Federation and, should there be the slightest risk of infringement or restraints on the human and civil rights and freedoms in Russia, back off!
But is there any risk of that kind? A couple of years ago when the idea of integration of monetary systems of the two countries first started floating around, economists predicted that this would increase inflation in Russia by no less than 10 per cent. When I mentioned this to a prominent State Duma deputy, who is interested in world politics his answer was to the effect that "Well, then we have to forego our momentary interests for the sake of the Union's resurrection". And this is a man who still thinks he is a Russian patriot...
These same patriots, ever nostalgic of the Soviet empire, have completely forgotten a unique feature of the former Union. Russians lived in the Soviet Union far worse than many of its numerous nations and nationalities inhabiting the former Soviet republics. For all its misfortunes the new Russia has provided its population with a better living than in many other former republics, including Belarus. You need not go to Minsk or Kiev to see that this is true. It is enough to see how happy Ukrainians or Byelarussians are when they manage to get a job in Russia. This is because despite all the setbacks and errors of the market reforms they have already produced plausible results, while in Belarus they have yet to get started. Having created a sovereign state the people of Russia are no longer responsible for the wellbeing of others. I might be accused of national egotism but I am deeply convinced that if a union with Belarus, whatever its form, involves a risk of decreasing the living standards of Russians by even one per cent and, hence, infringing upon their socioeconomic rights, any steps undertaken by Russia in the direction of this union shall be deemed contradictory to the earlier-mentioned Constitution provisions.
Let us consider another sphere - civil and political freedoms and liberties. I maintain that never in the history of our country did we have such freedom and democracy as we do now. Belarus (and the recent developments in this country are quite indicative) is evidently far from being a bulwark of freedom and democracy in the region. If the president of this country slips off words of approval of Hitler's regime in his official statements, I do not wish to make friends with him. And I want to ask the proponents of such a friendship: are you sure that a union with the current regime in Belarus will not play into the hands of our own enemies of democracy and human rights? I personally think that such a union is fraught with the threat of a consolidation of antidemocratic and totalitarian forces in Russia, and that is why it presents a danger to freedom in Russia and to its Constitution. Any activities to create a union are, for this reason, contradictory to the Constitution. The issue of a union with Belarus is indeed formidable, and cannot be resolved by simply making changes in the Constitution (in the form of a draft law that needs approval of 2/3 of the subjects' legislatures), as was proposed by Vice Speaker Sergei Baburin. Since it directly bears on the fundamental principles of our constitutional system another procedure provided by Article 135 specifically for this kind of situation should be applied: convocation of the Constitutional Assembly, which would either confirm adherence to the current Constitution, or proceed with the draft of a new constitution, which has to be approved in the course of a national referendum.
It is a bounden duty of our authorities to spell out all the possible consequences of the two countries' union so that the people of Russia could make a well-thought-out and responsible decision, otherwise it could hardly be deemed legitimate.
In my opinion a union with Belarus is premature. Let this country first achieve Russia's level of changes in all the aspects of a market economy. Only then can we talk about further integration of our two countries.
