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To the Protectors of the Constitution

To the Protectors of the Constitution
Yury Fatenko 28.11.2006

The one who defends the current Constitution of Russia indulges a mode of personal authority in which base are:

- four branches of authority (clause 11)

- which dependence from each other is subordinated by the will of the «President» (clause 80 par. 3)

- which powers are subordinated to the unitary principle of establishment of the state authority in the country: from above – downwards, that is in the uniform way (clause 77 par. 2)

- in a mode of decree “law-making” (clause 80 par. 2).

Specified contradictions, contradictions between the content of the Constitution and bases of structure - a principle of division of branches of authority (three in number according to cl.10), levels of authority (federal correlations according to cl..5) comprise not only legal collision. They are also immoral in their nature and establishment. For ambiguous norms of the right generate dual morals, cultivate legal nihilism.

I shall begin from the end. Democracy - an essence: procedure. From here, the law finds itself through certain, established by general order conciliation procedures: bills, readings, amendments, approval by chamber (two), and the enactment. Only after all these numerous procedures the law finds itself, comes into effect.

The decree is – an archaic norm of the "charter". It kittles from nonexistence of the right in the closed mode, in a shadow-like way. Decree-making doesn’t imply any procedures by definition. The decree - is subjective.

Nevertheless, under the current Russian Constitution (cl. 80, par. 2) "Decrees and orders of the President of the Russian Federation are obligatory for execution in all territory of the Russian Federation".

Quo warranto – I’d like to ask? The answer. By the right of the clause 11 par. 1 “The state authority in the Russian Federation is carried out by the President of the Russian Federation, Federal Assembly (Council of Federation and the State Duma), the Government of the Russian Federation, courts of the Russian Federation".

According to the clause mentioned, the state authority is carried out by four branches. Not by three, I dare to notice. By the right that is given by the clause 80 par. 3 «The President of the Russian Federation according to the Constitution of the Russian Federation and federal laws defines the basic directions of internal and foreign policy of the state».

If at the SOVIET authority these powers were under control of the unique but mullions-strong party (clause 6, Constitution of the USSR), I’d like to notice. While at the time of SOLO authority they are under control of the only official. Who is not connected with anybody by any obligations, is not controllable and not the person accountable to anybody.

The case when formal post («President») predetermined the function («The Chapter Глава исполнительной власти») by practically attendance order. That is the way. One was - nobody. Became – everything. Communism. On the example of a separately taken person.

By presidential powers are mediated not only judicial system (clause 83-e), executive authority (clause 83 and - е, d.), representative bodies (clause 95 par. 2). But also, in all listed above set, authority in regions: «Federal enforcement authorities and enforcement authorities of territorial subjects of the Russian Federation form uniform system of executive authority in the Russian Federation» (clause 77 par. 2).

Besides, "the unity of the system of executive authority" substituted by itself "unity of system of the state authority" (clause 5 par. 3). At that the basis of the last is made up by the federal (differentiating) relations.

I refer only to the constitutional norms. What can be said about the federal legislation which IS COORDINATED with the Constitution, IS SUBORDINATED to its basic parameters. It’s clear for me that everyone who protects the current Constitution of Russia, protects a mode of personal authority. It’s not so important whether he does it directly or indirectly. Consciously or due to a misunderstanding. But he stands on its guard.

Who protects the Constitution? First of all it is protected by the current "President". In any way, he is a lawyer. He protects it both as he is on this post and by the right of the Constitution (clause 80 par. 2) and according to own belief: «this document … allows us to generate authorities and managements in such a way so that we consider it expedient, at the same time it creates certain frameworks and restrictions connected just with observance of principles of democracy».

About the right, to be more exact about non-legal character of the law making mentioned, I’ve spoken above. I’ve also mentioned certain frameworks and restrictions connected with observance of principles of democracy. I shall say some words about a post "President".

So. Both functionally and formally this post is not subordinated to any of branch of authority. On the contrary, as we have found out above. All branches of authority are mediated by the will of one official. "President", among other things, is not also the chief of executive branch. As soon as it is done by the Government of the Russian Federation (clause 110). So, according to the formal logic of this norm, the Head of the Government is also the Chief of the executive branch. Well, no. Outside of his, the Head of the government powers, there are one and a half tens of bodies of the executive authority. Including power structures directly subordinated to “President”.   

If there is then any sense to the «President» to invade oneself, to infringe his own powers? He is not infringing than. On the contrary, he protects them. Who else protects the Constitution?

The current Russian Constitution is protected by the opponents of the current "President" - those political forces on which tables is stated: to limit powers of "President", to redistribute powers between him, Parliament and the Government, to change the order of formation of Federal Assembly, to improve judicial system, … something there to strengthen, correct, improve. At last, to return to "a hummock of readout" from which … a seed of personally unlimited authority has grown.

Where is logic? If it’s not the case when according to one poet one wants to say: «I love you but with strange love».

Opposition to its Highness charge him with what it aspires itself - to change a shape of Russia. However, according to their own taste. Here, then, is necessary to be consecutive. To choose. One of two. Or to refuse the program written on their banners. And to recognize norms of the current Constitution as faultless. Or to follow own program directives and to run the matter to the revision, clearing of some positions of the Main Law.

In the first case, the Constitution really needs to be protected. Whether it’s possible thus to be in opposition? To a court. Or to oneself.

In the second - the Main Law needs to be corrected. Whether only such attack can be coordinated with protection?

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