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When freedom to make laws is license to restrict freedom

by Andrey Borodaevskiy

Since the presumably rigged elections of December 2011, Russia’s parliament — the Duma — has become very prolific in lawmaking. On the surface, that is a good sign because it is the legislature’s job to issue new acts and sometimes to amend existing ones in accordance with the current changes in social, economic and political environment.

But the pathos and general direction of recent lawmaking efforts seem to be mostly of a restricting nature and thus narrow political horizon and contract opportunities for the populace to openly display its mood and aspirations. Especially since the inauguration of the current Russian president, the freedom to demonstrate and picket both in favor of peoples’ demands and/or against certain government actions has been substantially curtailed.

It looks as if in contemporary Russia the powers that be understand the principle “Everything which is not prohibited is allowed” in a peculiar and not quite typical way. It is common knowledge that this maxim represents an important constitutional principle derived from English law and an essential freedom of an ordinary citizen.

The converse principle — “Everything which is not allowed is forbidden” — applies to public authorities whose actions are limited to the prerogatives explicitly granted to them by law.

In the 1990s, at least the first principle often enough figured in public speeches of national leaders and in social practice of self-reforming post-Socialist and mainly post-Empire Russia. Nowadays, the situation has visibly changed, and the Duma/president machine has been stamping human-rights-restricting and authorities-power-enhancing laws one after another. The jocular interpretation of the above maxim in regard to Russia where “everything is forbidden, even that which is expressly allowed” seems to ever more correlate with the reality.

It looks like the legislators have been hurrying to furnish every kind of “dissenter” with a criminal law clause specially designed for them. Of this nature is the re-established law on libel, which for a short while was abandoned but, since June 2012, has again entered into force based on broader interpretations than before. Since November 2012, the law regulating nongovernment organizations has been in force with some amendments, one of which treats the NGOs using financial funds from abroad as “foreign agents.”

Of the same kind are amendments to the act about meetings as well as adopted and planned innovations regarding “treacherous,” “Russo-fob” and “blasphemous” behavior.

These happenings underline the fact that it is solely the executive power that is engaged in real policymaking and not Russian legislature, which represents just an auxiliary bureaucratic office servicing needs and wants of the political leadership.

The member of Parliament is someone whom the ruling elite has chosen to serve its interests. And he or she is expected to behave accordingly. It is to “bring discipline” into parliamentarian rows that the safeguarding and “anticorruption” act prohibiting members of Parliament from having accounts in foreign banks and real estate abroad has been designed.

Its obvious aim is to make “the people’s servants” more submissive and obedient and — simultaneously — to forge a weapon against members of the “legal” opposition.

In February 2013, President Vladimir Putin signed several acts concerning the Administrative Code and introduced higher fines for many misdeeds, including fines for the Internet providers who fail to prevent children’s access to “harmful information” (a very vague term indeed). This decision serves as an amendment to a similar law enforced in July, just like the automated information system containing the prohibited domains and addresses (which has been in use since Nov. 1).

Many other legal decisions also touch upon the status of children. In the atmosphere of a tough confrontation between Russia and the U.S. over the tragic death of a small Russian boy adopted by an American family, a federal act has put a ban on the adoption of Russian children by the U.S. citizens.

The “Maxim Kuzmin Act” stamped in late December 2012 represented — in many ways — an answer to the “Magnitsky Act” introduced in the U.S. less than a month before that. The upper chamber of Russia’s parliament — the Council of the Federation — is said to be bracing for an overall ban on adoptions of Russian children by foreigners. The intellectual opposition treats such moves as inhuman, like something more Herodian than Christian.

All in all, legislative acts, presidential decrees (“ukases“), administrative orders and interpretations — from federation organs and down to city and town councils — are cementing the regime and supplying the higher administration with tools to deal with practically any unwanted situation.

There are irrefutable medieval traits in Russia’s current lawmaking activities. In January, the Duma adopted (in the first reading) a law introducing fines for “homosexual propaganda” among minors. Public protests of the “Day of the Kisses” type meet with the police repressions and assaults by homophobic mobs. There is criticism that the state has been rousing a homophobic mood.

In some regions, including St. Petersburg, clearly homophobic legislation has been adopted.

The most regretful is, perhaps, the fact that the powers that be seem to find all such legal “adjustments” insufficient. In dealing with dissenters, typical are false accusations, misinterpretations of real events, ill-founded arrests, invocations of nonexistent witnesses and the twisting of cases to achieve “necessary” sentences.

Everything, including the legislation with originally anticorruption potential, is used against political opponents, while the mass-media contribute their share by airing programs and talk-shows full of slander and questionable “facts.”

The sphere of culture, education and the arts, in particular, suffer from administrative chills. For one, in higher education, the reforming processes and monitoring practices are feverish and often devoid of logic. The promises of higher wages for professors and corresponding halfhearted measures are accompanied by stricter bureaucratic control over lecturers’ work and by closures of some universities and curtailments of staff at those remaining.

Simultaneously the education ministry has prepared an order allowing the universities to easily expel students for their participation in actions of dissent. A group of rectors has approached the defense ministry with a proposition to call up students in civil (nonmilitary) universities for army service during summer vacations.

The Duma has in its portfolio the draft of a law aimed at banning the production on Russia’s soil of foreign movies and introducing restrictions concerning the origin of investment funds and the national composition of filmmaking groups.

Another eventual law is aimed at introducing strict quotas for foreign-made movies shown in Russia’s cinemas and fines for their transgressors.

In early 2012, former Soviet leader Mikhail Gorbachev and many others called for convocation of a Constituent Assembly to work-out and adopt for Russia a new basic law. Meanwhile, prevailing lawmaking practices in our country today make one wonder if it is not better to leave things as they are and not risk ending up with an even worse and lopsided document as the crowning result of all the efforts.

What the country actually needs is strict obedience on all levels to the current constitution of the Russian Federation introduced in December 1993, which contains several dozen articles mainly corresponding to widely recognized democratic principles. The current situation leaves much to be desired.

The same applies to the legislative base and practices of national elections. Since April 2012, a new — slightly more liberal — law concerning registration of political parties is in force, and — as a logical result — the overall number of parties in the country has grown dramatically (exceeding ninety, actually). But what’s the use of this positive novelty if another recent law — which regulates election procedures — keeps banning small parties from jointly fielding common candidates?

Similarly citizens are robbed of their “last resort” — the opportunity to cast a vote “against all” — to strike every candidate appearing on the ballot paper.

All in all, the 494-page document has roughly returned the country to the more or less democratic situation that existed between 1993 and 2003, which is by far not enough.

During the last “match” between Russia and the democracy-minded Europe in Strasbourg, members of the Council of Europe Parliamentary Assembly in strong terms criticized Moscow for pursuing public activists and for generally toughening criminal law.

The Western authors of the draft of the PACE resolution wanted to include into it a decision — very annoying for Russia’s leaders — to raise the status of the Russian Federation monitoring to the Committee of Ministers level. After a tough diplomatic confrontation, however, this point has been dropped from the final text of the resolution. The Russian drama goes on.

Andrey Borodaevskiy (annabo36@mail.ru), an expert on world economy and international economic relations, was a professor at Seinan Gakuin University, Fukuoka, from 1994 to 2007.