Constitutional bases of ideological and political variety in Russia
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Constitutional bases of ideological and political variety in Russia
According to Article 13 of the Constitution, fixing one of the bases of the constitutional system of Russia as democracy within the framework of the legal state, ideological variety is admitted in the Russian Federation no ideology can be established as state or obligatory, the political variety and multiparty membership is admitted equality of public associations before the law and there is fixed the prohibition on creation and activity of public associations, whose purposes and actions are directed to forcible change of the bases of the constitutional system and breach of integrity of the Russian Federation, undermining of safety of state, making of armed units, kindling race, national and religious discord. Thus, the Constitution fixes the ideological and political pluralism as the fundamental of the development of the society and one of the profound features of democracy .
Market economy, which bases are also fixed by the Constitution, objectively conditions the spottiness of the society. By virtue of different circumstances of economic, social, political nature, as well as dependence on sex, age, directivities of personal interests and the other factors it is divided into different classes, layers and groups of the population, united by coincidence of interests of their members and consciously or unconsciously believing in common ideals and pursuing general purposes. Exactly this multiplicity of component elements of the society forms the base of ideological and political pluralism and objectively predestines it.
In other words, the multiform reality corresponds to pluralism making part of the internal mechanism of self regulation and self development of the society that in turn is the condition of evolutionary development of the society and determines the limits of state management of the society. As to the monistic vision of the society and realization of this vision in the form of determination of this or that ideology as state or obligatory or in its political system, they originally bear elements of the negation and future destruction since they require presence of external regulator, concerning the society capable to work without mistakes and malfunctions.
Recognition of the ideological variety (alongside with recognition of the political variety and multiparty membership) as one of the fundamentals of the constitutional system of the Russian Federation is not only reflex on implanted decennially ideological monism, fixed in the soviet constitutions and supported by all institutes of state authorities, but the reflection in political system of the regularities of the economic development, based on free market and competition. Thus, such recognition means essential narrowing of limits of state authorities as from beneath of supervision of the state there is removed the sphere of ideology meant as the system of political, legal, moral, religious, aesthetic and philosophical views and ideas, realized and estimated by relations of the people to reality.
Simultaneously such constitualization since it is realized in social practice, acts as the guarantee for democracy, based on free circulation of political glance and discussion the varied political programs, which, however, can not call in question democracy itself. On this is based the European wide vision of democracy. In particular, the European court on human rights, interpreting the Covenant on protection of human rights and fundamental freedoms, in the Decision from May 25, 1998 on the case «The socialist party and others against Turkey» has noted: «The essence of democracy is to allow to bring forth and convict the varied political programs, even those, calling in question the order, according to which at present the state is organized that they do not damage the state».
It results in prohibition for the state, its bodies and officials in their activity on realization of state-powerful functions and authorities to follow not the Constitution, law, other statutory acts, but this or that ideology, including ideology of liberalism, social-democracy, Marxism-Leninism and etc. In this respect the state is «above ideology».
Besides, such recognition results in some individual and collective rights of the citizens and their associations on working out and development of outlooks and theories of the ideological nature, their spreading in non contradicting to the law forms and in the order established by it, practical realization by ways, corresponding to the constitutional system of the Russian Federation, etc.
The recognition in the Russian Federation of the ideological variety organically results in the position, according to which no ideology can be fixed as state or obligatory. In fact, it means the prohibition, addressed to the bodies of the government, including the head of the state, lawmakers and the executive power, other state bodies and their officials, on determination of this or that ideology as the state. Hereunder are fixed the certain limits of activity of the state and its bodies. Simultaneously this prohibition is addressed to other subjects of the law, for example, public associations, church, and it means recognition of unconstitutional proclamation of this or that ideology in the sphere of education, artistic creative activity and other spheres of collective vital activity of the people.
The recognition of the ideological variety is accompanied by the recognition of the political variety and multiparty membership, which is the structured expression of the ideological variety, its registration of different political parties, uniting the people depending on their social and political orientation. Exactly, the parties play the most essential role in provision of political pluralism and successful functioning of its institutes.
Thus, political parties are the institute necessary for functioning of democracy within the framework of legal state and in the forms, fixed by the Constitution of the Russian Federation. Since the collective participation of the people, forming the multinational people of the Russian Federation is the barrier of the sovereignty and the unique source of the power in the Russian Federation — in realization of the power in Russian Federation, proclaimed in the preamble of the Constitution and outlined in its Article 3 and in the number of other positions, assumes forming of political will of people, determining activity of public authorities then on the sense of Article 13 of the Constitution of the Russian Federation exactly political parties assist the process of forming of will of the people in conditions of openness of such process and freedom of creation and activity political parties corresponding to the criteria of democracy within the framework of federative legal state with the republican mode of rule.
The Federal Law from July 11, 2001. «About political parties» (with the further changes and additions) provides the principles of formation, registration and activity of political parties and their regional branches, the state support and the state financing of political parties (depending on votes at elections), the forms of their participation in elections, guarantees of their activity and mechanisms of the supervision for observance of the Constitution of the Russian Federation and legislation. According to item 1Article 3 of the Federal Law «About political parties» a political party is a public association, created for the purpose of the participation of the people of the Russian Federation in political life of the society by means of forming and expression of their political will, participation in public and political actions, elections and referenda, as well as for the purpose of presentation of interests of the citizens in the bodies of the government and in the bodies of self-management.
It means that a political party is an autonomous from the state institutes' formation that is the self-controlled public association, created on the initiative of the citizens and in its activity since it is realized in no contradiction with the law, independent on the state. Thus, the political party is the special type of public association, for which it is typical the determined target orientation, corresponding the ideological base, constant organizing structure, fixed individual membership.
Simultaneously the political party is the element of the political system of society. Its purpose is participation in political life of the society and in conditions of developed multiparty membership and corresponding to it electoral system — institualization of the state power in limits and forms fixed in the Constitution of the Russian Federation.
The Constitution of the Russian Federation, however, proclaiming political variety and multiparty membership and guaranteeing equality of political parties before law regardless the stated in their constituent and program documents ideologies, purposes and tasks and entrusting the state with responsibility to maintain observance of rights and legal interest of political parties, does not directly determine the particularities of creation, activity, reorganization and liquidation of political parties, as well as does not i establish conditions and the order of realization by the citizens of the Russian Federation of the right to association in political parties. For the Constitution there is also no difference in amount of political parties, their numerical and social composition, ideology and etc. It is limited with determination of organizing and functional parameters of existence of public associations. We mean, on the one hand, that the principles of organizations of public association should not contradict the requirements of democracy and human rights as they are expressed in the Constitution, and, on the other hand, purposes and activity of the public associations should be identical to the constitutional system.
In this connection the Constitutional Court of the RF in the Resolution from December 15, 2004. 18-П has emphasized that the lawmaker has the right to regulate the legal status of political parties, including conditions and the order of their creation, principles of activity, rights and duties, to establish l the necessary restrictions, concerning realization of the right to association in political parties, as well as the bases and the order of the state registration of the political party as the juridical person. Thus the realized by the lawmaker regulation by virtue of Article 17
(Part 1) of the Constitution of the RF, establishing that in the RF there are guaranteed rights and freedoms of a person and a citizen according to universal principles and norms of the international law and in accordance with the Constitution of the RF, should not distort the essence of the right to association in political parties, and introduced by it restrictions — to create ungrounded obstacles for realization of the constitutional right of each person to association and freedom of creation and activity of political parties as public associations.
Consequently, any introduced by the lawmaker restriction should be necessary and commensurate to the constitutionally significant purposes. Proceeding from this postulate, taken from the Constitution, we can make at least four essential conclusions:
First, the federal lawmaker has the right and is obliged to regulate conditions and the order of creation and activity of political parties;
Second it is admissible to establish by the federal law of the requirements presented to creation and activity political parties;
Third, limits of discretion of federal lawmaker are predetermined first of all by recognition in the Russian Federation of ideological and political variety and multiparty membership and by establishment of their constitutional features, which results in necessity of stage forming of the firm multiparty system, capable to guarantee political will of the multinational people of the Russian Federation within the framework of this or that electoral system, whose particularities are dictated by the presented on the corresponding stage of development of the Russian Federation of both democratic legal federative state with republican mode of rule of the requirement to creation and activity of political parties requirements;
Fourth, these limits are predetermined by the constitutional rights and freedoms, including the right of each to association, which guarantee, as it has repeatedly noted in decisions of the Constitutional Court of the Russian Federation and has been confirmed by the precedent activity of the European Court on human rights, are distributed on political parties, as well as freedom of thought and speech, right of each person to search, get, transfer, produce and spread information in any legal way since associations of persons, having the same beliefs or interests or common ideas, is one of the forms of collective realization of freedom of thought and speech. The specified positions correlate to the internationally-legal obligations of the Russian Federation, taken, in particular, in accordance with Article 22 of the International Pact on civil and political rights and Article 11 of the Covenant on protection of human rights and fundamental freedoms.
The Principle of multiparty membership means legality of political opposition. The Constitution legalizes peaceful, non violent competition of political parties for participation in realization of the state power and its institualization in parliamentary and other forms established by the Constitution (nomination of the candidate in deputies, to the position of the President etc.). We mean influence on state control that is determination of the direction of its activity as a whole or in separate spheres of state-legal regulation of the social dormitory.
Recognition of ideological and political variety naturally results in fixing of equality of public associations before the law. It is expressed, first, in equality of their rights and duties in public and economic activity, fixed in the Constitutions, federal law and other statutory legal acts; second, in equality of public associations in their relations with the state and its bodies. It means that the constitutional fixing equality of public associations before law, on the one hand, acts as the guarantee of political pluralism and non allowance of confirmation in society of the one-party system, subordinating the state, other political and social institutes. On the other hand, this position simultaneously means the prohibition, addressed to the state, its bodies and officials to create more favourable conditions of existence and activity of these associations and, on the contrary, to prevent existence and activity of other associations if their purposes and actions do not contradict the Constitution and federal law.
The Constitution of Russia about limits of political pluralism
Political pluralism is not boundless; it is based on the definite legal bases, determining the external frames of activity of public associations. The main thing is in interfacing their purposes with the constitutional system. Exactly for protection of the Constitution that is for preservation of identity of fixed by it democracy within the framework of legal federative state with the republican form of the rule, the Fundamental Law provides the possibility of prohibition (of non allowance of the creation and activity) of public associations, purposes or actions directed to forcible change of fundamentals of the constitutional system and breach of integrity of the Russian Federation, undermining of safety of state, making armed units, kindling social, national and religious discord.
The contained in Article 13 of the Constitution formula about the purposes of association, presence of which makes it unconstitutional, testifies to preventive nature of the institute of non allowance of creation and activity of public association in the Russian Federation. The prohibition is possible if there is the real threat to the constitutional state system. The ground for the prohibition is not separate violations of the constitutional norms. Such violations if there are grounds, result in liability of physical persons the established by the criminal, civil, administrative legislation. So, we mean the presence of such purposes of associations, whose realization would deprive it of «identity» with constitutional system of the state. Moreover the mentioned «identity» should not be interpreted as restriction of pluralistic democracy, freedom of political activity, including reforming of the constitutional system in accordance with the procedures established by the Constitution and in forms provided by it, which, however, can never spread to refusal of its fundamental principles that is democracy itself.
Thus, the problem of constitutionality can and should be considered not only from the point of view of interrelations of the association with other participants of the political process, but also from the point of view of its internal organizations, the cardinal principles of the organizing structure and functioning. However in the later case for prohibition of the associations the violation of democratic principles of organization and activity should have nature of principal undemocratic position, expressed in refusal or rough violation in broad scale of human rights, prohibition of functioning in the order established by the Constitution of state institutes, sovereignty of the state power. The corresponding estimations, resulting in obligatory legal consequences, can be given only by court. Thus, the undemocratic position of the association should be confirmed by the set of factors certifying about real threat of existence and activity of such association to the constitutional system, safety of a personality, society and state.
The Fundamental Law directly determines objects of constitutional protection, and if necessary protection on behalf of the authorized body: the constitutional system of Russia, its integrity and safety, as well as social, national religious consent, which threat can serve the ground for prohibition of creation and activity of the party or other associations of the people.
The Corresponding purposes in the documents of the association can be not proclaimed in general, but exactly to this result, finally, can bring activity to party, public association or mass motion if it is not stopped in the order, established by the Constitution and the Federal law «About public associations». It is enough to have at least one of the criteria specified in the Constitution to recognize the corresponding association unconstitutional.
According to the Constitution unconstitutional are any parties, organizations, public associations, having the purpose the forcible change of the constitutional system. We mean exactly forcible change. Consequently, any calls or requirements of change of the constitutional system of Russia in accordance with the procedures established by the Constitution and laws if they do not spread to refusal from democracy as the form of the state and profound feature of its activity, can not be recognized unconstitutional; such can be only actions (or propaganda of such actions) of the unconstitutional nature and incompatible with the Constitution.
It is impossible to interpret broadly the notion of violence. We think, we must mean not psychological influence or economic and political pressure (strikes, etc.), but forcible deprivation of the constitutional bodies of legislative, executive and judicial power of the opportunity to realize their functions and authorities. The forms of such prohibition can be different, but for recognition their unconstitutional nature real use of violence for change of the constitutional system of the Russian Federation should be necessary.
Part 5 Article 13 of the Constitution says that «is forbidden creation and activity» i.e. we mean not only organizing (creation), but also functioning (activity) aspects of the public association. Consequently, the object of estimation should be not only the charter and the program (such estimation is realized at the stage of registrations of the association by the Ministry of justices of the Russian Federation and its body), but also its activity, so, in what measure purposes expressed in constituent acts should reveal in practical activity of the association. Thus, there should be enough to proclaim of the specified purposes in the constituent acts, especially, if such association is enough multiple, united and targeted on the unconstitutional action, and the circumstances and facts testify to the fact that the corresponding actions can happen. Thus, however, as proofs can not be taken the doctrine signs about revolution, demolition of the state.
As the criterion of unconstitutionality of the public association the Constitution names the presence at the corresponding associations of the purposes of the forcible breach of «integrity of the Russian Federation». Integrity of the state is not only its territorial integrity, but also integrity as the corporative unit. So, for recognition for the association unconstitutional it is necessary, first of all, to proclaim in its constituent acts of the purpose of forcible disintegration of the territory of the state or establishment of directivity of its practical, political or any other activity exactly to forcible disintegration of the territory of the state or initiating of actions on forcible disintegration of the state territory. From the objective point of view this activity can be also expressed in separatist surges with use of violence or in activity, directed to encouragement or rendering aid to a foreign state or international organization in forcible disintegration of a part of the territory of Russia.
The undermining of safety of the state is one of the major criteria of unconstitutionality of any public association. The Constitution does not reveal the contents and legal nature of such notion; it is made in the current legislation, first of all, in the Law of the Russian Federation from March 5, 1992. «About safety» (with changes and additions). Safety of the state is the condition of defense of its vitally important interests from internal and external threats. In turn vitally important interests are the set of needs, which satisfaction safely provides existence and possibility of the progressive development of the state. Thus, the notion «undermining safety of the state» has the generalizing nature and includes forcible change of the constitutional system and territorial integrity of the state. The specified law includes state sovereignty in the notion of safety of the state. The public association if it is developing in the constitutional state must not endanger safety of the state — its constitutional system, sovereignty and territorial integrity. Existence of the association and its activity must not undermine the condition of defense of vitally important interest of the state; put them under threat inwardly in the state or outside the state.
The independent place in the list of criteria of unconstitutional political party public association and mass movement occupies «kindling social, national and religious discord». In this connection, first of all, it is necessary to admonish of melanges of the constitutional and criminal-legal aspect of this problem. The criminal law mentions it only in the context of the criminal liability of the physical persons for concrete actions, which are recognized criminal and result in punishment established by the Criminal Code of the Russian Federation.
The Constitutional Law considers this problem in the broader social plan — that is in the sense of state-legal organization of relations between different classes and social layers, nations and ethnic groups, and religious associations. And in this sense the Constitution fixes as the bases of the social relations — the social solidarity; interethnic relations — national equality, cooperation among nations and people, national sovereignty, which never spreads to secession; relations to religions — religion tolerance, division of church from the state (secular state), freedom of cults and equal participation of the people in realization of state power and management regardless of their relations to religion and church.
The term «kindling» from etymological meaning assumes active activity of the association or its members, acting in accordance with the constituent acts of the association or on its commission contract, directed to achievement of the corresponding purposes. The given activity can be expressed in the form of the agitation or propagandas, mass activities, including mass-meetings, assemblies, demonstrations and etc. The purpose of such activity is excitement of social hate or intolerance, undermining of trust and respect to this or that nationality, proof superiority to one nations over another, upbringing of hostility to national custom, everyday life and lifestyle, as well as excitement of mistrust and hostility to this or that religion and its supporter, jamming legal interest and rights determined confessions and groups of believers.
We do not mean separate facts, no matter how significant they are (these deeds can result in criminal, administrative, civil liability), but we mean the policy of the association, its activity, directed to achievement of the opposition between classes and social layers of the society, nation and ethnics groups, different confessions. Consequently, as kindling social discord can not be qualified the establishment of presence in the society of the class struggle or statement of the necessity of the so called class approaches to estimation and explanation of the phenomena of social reality. We do not mean abstract principle social and national organization of the society and relations between the state and the church, relations among the churches, but we mean the propaganda of violence as the principle and way of acting, directed to kindling social, national and religious discord, to forcible sanction of the existing social, national or religious contradictions. The given grounds for liquidations of political parties (and other public associations) are concretized by the Federal Law «About reluctance of extremist activity».
The Constitution specifically specifies inadmissibility of creation by public associations of the armed units. We mean prohibition of such associations, which at least obliquely pursue political and other purposes by means of organization of armed nature moreover the given prohibition, have the general importance and is distributed on all public associations.
At decision of the question about the criteria of constitutionality of public associations it is impossible to be abstracted and from international obligations of the Russian Federation, in particular, stipulated by the International Covenant about liquidation of all forms of race discrimination from March 7, 1966. Its Article 4 establishes that the state-participants convicts any propaganda and all organizations, founded on the ideas or theories of superiority of one race or group of persons of the certain colour of the skin or ethnic origin, or trying to justify or encouraging race hate and discrimination in any form, and are obliged to take immediate and positive measures, directed to such discriminations or acts of discrimination, and for this purpose «declare unlawful and forbid organizations, and organized any other propagandistic activity, which encourage race discrimination and incite to it, and recognize the participation in such organization or in such activity as crime, punished by the law». The expression «race discrimination», applied n the specified covenant, means «any difference, exception, restriction or preference, based on features of race, colour of the skin, generic, national or ethnic origin, having the purpose or effect of destruction or derogation of recognition, use or realization on equal basis of the human rights and fundamental freedoms in political, economic, social, cultural or any other spheres of public life».
The specified positions of the International Covenant about liquidations of all forms of race discrimination result, at least, the three main conclusions, having vital importance for adequate interpretation of the legal nature of the problem discussed by science and law enforcement activities: first, there should be subjected unlawful and forbidden both organizations spreading the corresponding propaganda and organizations though not spreading the corresponding propaganda but whose activity, is based on the ideas or theory of superiority of one race or groups of the persons of the certain colour of the skin or ethnic of the origin; second, participation of the citizens in such organization should be recognized as the crime punished by the law; third, the criterion of legality of organization should be its attitude to human rights without difference of race, colour of the skin, nationality or ethnic origin.
The time and happening in the country rash changes imprint the processes of development of political pluralism in Russia. But we still remember the times of the threat of usurpation of the sovereignty of the people pseudo party, «sprouting» not from the needs of the social progress, but from the developed political situation. We should not forget about the danger of ideological insufficiency and political order of the power, which can result in the state dominant of the political party by support of people and single party membership.
There have appeared new threats, synthesizing dangers of the generated bureaucracy of «democratic» Ceasar and party «avant-gardism», possible even in conditions of general and even equal electoral rights and free elections by replacing from active political life of the people and conversion of people in object of manipulation by the party top. There increases the danger of the party egoism in legislation about elections and attempts, notwithstanding objective regularities of evolutionary developments of the political system, to order such electoral system, which is identical only to the developed pluralistic democracy, and in conditions of its formation can put the question about subjective-legal nature of passive electoral right of the citizens, and their equality before the law depending on accessories and one or another political party .
The science of the constitutional law should clearly realize these dangers, otherwise it would be impossible to work out state-legal ways of their blocking, and the same as understanding that not political pluralism is «guilty», as it forms the profound feature of democracies in the modern Russia and the vector of its political development. Exactly we should not speak about refusal of political pluralism, as in this case we shall repeatedly find ourselves in the inherited former monistic presentations and corresponding to it institutions, but, on the contrary, in the consequent statement and due guarantees of functioning of the whole system of pluralistic democracy in accordance with the model established by the Constitution identical to needs and objective regularities of the firm functioning of society.
ideological political constitutional
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