Valery Zorkin

President of the Constitutional Court

of the Russian Federation

Political Rights in the Cultural-Historical Context

Dear colleagues and friends,

It is a privilege to address this august gathering of legal practitioners and academics.

At the outset let me congratulate our hosts on the occasion of the Fortieth anniversary of the Supreme Constitutional Court of Egypt. My own Court is not even twice as young, however even brief acquaintance with issues that you are confronted with reveals similarity with what we in Russia have to deal. Historical, political, cultural, economic or social environments notwithstanding, the constitutional justice in different jurisdictions often adopts similar approaches thus serving as a common denominator for an inter-civilizational dialogue.

1. Political, along with individual, rights, belong to what is known as “first generation human rights”. Their mission is to ensure popular participation in public and political affairs of a nation, in governing the state, in formation of bodies of state power and of local self-government and participation in their activities.

However, the implementation of political rights is determined by cultural, ethnical and confessional orders incidental to particular civilizations. Constitutional guarantees of political rights are most prone to influences inherent to development of specific civilizations and countries.

It is not merely a matter of existence of a right or its absence. Rather it is a matter of specific expression of that right within the context of political, legal and cultural features of a given stage of development of a particular country. Needles to say that no one is entitled to lecture others as to what is right and what is wrong. According to a well-known report “Alliance of Civilizations”, commissioned by the UN Secretary-General, “there is no hierarchy among cultures, as each has contributed to the evolution of humanity. The history of civilizations is in fact a history of mutual borrowing and constant cross-fertilization.”

Yet the world is arranged in such a way that due to interpenetration and mutual influence between cultures one may identify numerous constitutional values that were adopted by a majority of states. They reflect common ideals of international law comprehensible to popular masses their national, cultural or religious identity notwithstanding, and include sovereign equality of states, prohibition on the use of force or threat of force, non-interference in internal affairs, respect for human rights, international cooperation, etc. International implementation of those very constitutional values would ensure the maintenance of international order and stability, the alternative being a mono-polar world governed by the power of the might.

While we reject the notion of the “conflict of civilizations” we ought to recognize distinct and even significant differences between Western and Oriental ways of thinking, lifestyles, and national legal systems. Historically it was the West European space that served as proving grounds for emerging political rights. But any attempt to indiscriminately import them into dissimilar cultural, social, economic environments would oftentimes lead to a problem of compatibility with the mentality of peoples that matured in different cultural, religious or communal traditions. It is generally inevitable for a particular cultural environment to resist the imposition of alien legal institutions upon national legal systems. Even the European Union which is the product of successful integration had to cope with such conflicts. In its own turn, resistance to such impact may have a boomerang effect and lead to regionalization of rights and freedoms and adaptation of universal values to historical, cultural, religious factors that define a particular type of civilization.

For example, many Asian states would not share one of the principal postulates inherent to Western notion of a democratic society prioritizing individual human rights. To an extent that may be applicable to Russia where the state has traditionally and through the ages of Russian history played a primary role in economy and in most spheres of public life. Hence public irresponsiveness to certain traditional West European legal institutions.

The reason for that is the deformation of Western political values as they are being promoted to other parts of the world, leading to their rejection. We witness that process in many countries that have only recently been referred to as “new democracies”.

That raises the question of limits and modalities of proliferation of universal ideas and values, in other words, whether it is permissible to apply coercion in any form to achieve that goal. To what extent it would be justified to force certain ideas or way of life on particular peoples or countries for whom those ideas may be essentially alien? And if they are rejected, would it be permissible to impose those values invoking the right of the might and alluding to the need to do good to feeble.

Recent events have proven the bankruptcy of such practices. Any attempt to forcefully plant political values and legal institutions that evolved in a specific cultural environment into a foreign and unbroken soil would ultimately create hotbeds of tension, confrontation and conflicts that international community may not be able to control effectively. Drive for hegemony leads to destruction  rather than to creation.

But disparity and even sharp contrast in ways of life, thinking, culture can, odd as it would seem, exert positive influence. The recognition of differences may incur the urge to seek commonalities and treat each other with more tolerance. It is through realization of community and acceptance of particular developmental features of others that the humanity could identify true universal human values and give to the international legal system a powerful impetus to further development.

To achieve that the globalization would have to follow a more intricate pattern and turn from a mere unification into a completely different phenomenon which would be complex, rich in content, multi-dimensional, thus capable of reviving genuine trust in all aspects of human life – politics and culture, religion and philosophy, finances and law. I believe that if we appreciate dangers intrinsic to simplification that has so far been predominant, we shall reach a new and more adequate understanding of the relationship between singular, particular and universal.

Under such circumstances a body of constitutional justice acquires the role of a gardener who grows on the unique national soil the constitutional principles and ensuing political rights.

Life has proven that modern constitutional justice has become a universal legal mechanism which contains the surge of radicalism of all breeds, proceeding, on the one hand, from adherence to the principle of national sovereignty and comprehension of national peculiarities and, on the other hand, from principles and norms of international law and observance of international obligations that have become component parts of national legal systems, and understanding of community of the civilization. Such approach is peculiar to modern constitutional justice the world over. Here integration of efforts is vital. Constitutional protection of political rights will be promoted by joint and unified action.

2. Russia is a multi-national state that unites multiple nations belonging to various cultures and religions and where the East meets the West in more than just geographical sense. She is also enduring an ordeal of engraftment of universal human rights standards. She faces the task of forming public conscience that could serve as the foundation for democratic heritage so that democratic legal ideals and values could guide the development of the nation.

A quick glance at the recent Russian constitutional history would reveal striking examples of arduous acquisition of political rights. The Russian Constitution of 1993 was adopted under complicated circumstances. By late 1980s the amassed societal fatigue caused by lack of freedom was about to explode the country. Political leadership lost control over enormous public energy. The early gulp of freedom led to severe intoxication. The constituent entities of the Russian Federation tried to grab more power than they could handle in what we refer to as “the parade of sovereignties”. In effect, the people discontented with lack of any political freedom and with no experience of balancing freedom and the law treated first steps towards freedom as an invitation to permissiveness.

There was a real threat of disintegration of the country, and there was an imminent threat of Russia falling apart in the aftermath of the break-up of the Soviet Union, which led to a powerful urge to roll back to total denial of any liberty and to reinstatement of a society with no alternatives. By 1993 Russia was on the brink of an abyss.

The outstanding importance of the Constitution of 1993 lay in the fact that it reinforced the structure of the state while retaining the space for political freedom within that solid structure.

3. In our current discourse of political rights we may not overlook the unprecedented situation that, in the globalization environment, spreads throughout the planet at breathtaking speed. Of course I am alluding to the prospective negative consequences of the global financial and economic crises.

Many experts foresee, and for good reason, that current global financial and economic crises will be conducive, in the negative sense, to the emergence of novel challenges and threats. There are forecasts of snowballing growth of illegal immigration from Africa to Europe. The on-going crisis threatens to lead to a total break-down in programs of humanitarian food and medical aid to starving population and to victims of regional conflicts. Wherever there is a surge in illegal immigration, trade in humans will increase. In the crisis environment those processes may acquire extremely inhumane forms. The crisis will only aggravate territorial, ethnical and religious conflicts in regions destitute of food and fresh water. As a consequence, there will be an increase in crime rates in the European Union, the Commonwealth of Independent States, and the United States. Apparently, certain individuals who have gotten accustomed to a convenient level of comfort would strive to retain it through gaining illegal access to material and financial wealth.

The world community is looking for ways out of crisis. Governments world over are developing anti-crisis measures. Emerging problems are essentially international. They require development and introduction of new “critical technologies” into politics, economics, and law.

Many of anti-crisis technologies will not meet public support. The crisis itself in every country serves as a pretext for political attacks, despite the efforts of governments to cope with it. Undoubtedly the crisis will lead to aggravation of internal political tensions, as well as to abuse of political rights by certain quarters, by far not progressive, and right up to anti-constitutional action and attempts to seize power.

Major international think tanks predict that in the coming decades the world will be confronted by permanent risk of a nuclear war, emerging conflicts over sources of energy, food and fresh water, aggravated by strategic rivalry related to trade, investments, technological innovation, in the environment of the on-going military competition. Against this background terrorism with growing frequency will serve as a tool in new types of warfare and in settlement of conflicts. And here the entities that employ terrorist acts may remain obscure, as proven by the Mumbai drama.

There is no need to be a prophet to foresee that under such circumstances the principal constitutional problem for a state would be to reconcile the duty to guarantee human and citizen’s rights and freedoms with the need to protect national security.

I am sure that the rule-of-law government must combat crime, international terrorism and internal political extremism by exclusively legal means, otherwise there will be a collapse of law and order and of the constitutional system.

4. The constitutional system as a whole, and the sphere of human rights in particular, are threatened by two types of destructive radicalism, that is, the arbitrariness of government and anarchy. The Constitution is based on the assumption that public authority is organized in a democratic and legal manner, and would allow no one to break the bounds of law. At the same time the Constitution obliges the government to ensure security of individuals, the society, and the state, to suppress arbitrariness in any of its manifestation, whether it is terrorism, transnational organized crime or corruption.

The constitutional judiciary will be tasked with the mission of utmost importance, that is to protect constitutional human and citizen’s rights and freedoms from groundless restrictions imposed by the state. It is important to observe the criteria of restrictions that are generally accepted by modern constitutional states. Those restrictions will be possible only if they meet the requirements of fairness and reasonableness, are proportionate, commensurate, and are necessary for the protection of constitutionally meaningful values, including rights and lawful interests of other individuals, are not retroactive and do not infringe upon the very essence of constitutional law, that is, they do not constrain the scope and application of the basic content of respective constitutional norms. A norm, in order to exclude the possibility of a disproportionate restriction of human and citizen’s rights and freedoms, must be formally definitive, precise, accurate and clear, barring any broad interpretation and arbitrary application of restrictions it provides for.

For example, the Russian Constitutional Court has ruled that in particular and current situation in the country political parties established on the national or religious basis would be unacceptable. My colleagues and I reckoned that in a state as multi-national and poly-religious as Russia specific national or confessional connotations in political movements would result in stratification of the society, rather than its consolidation.

In conclusion let me underscore that decisions of constitutional courts are based on constitutional provisions as they are interpreted under specific historical circumstances. Life does not stand still. For the Constitution not to end up as a dusty manuscript, it must guarantee both stability and development of the society. Hence, every time when the Constitutional Court decides a specific case it has to interpret the Constitution in its application to grave and acute issues posed by life. Where is the fine line beyond which a restriction of human rights turns into their denial? For the sake of what or who those restrictions are imposed? What is the best way to strike a balance between security of the state and society, and individual political rights?

In the interconnected and interdependent modern world these complex issues may and ought to be dealt with only on the basis of agreement and mutual understanding. Conferences like the one that brought us together today are but a step forward along that long and arduous road.