In the section on the question who is the bearer of sovereignty and the only source of power in the Russian Federation? given by the author Dashulya Mukonina the best answer is Constitution of the Russian Federation
Adopted by popular vote on December 12, 1993.
SECTION ONE
Chapter 1. Fundamentals of the constitutional system
Article 1
1. Russian Federation - Russia is a democratic federal state governed by the rule of law
with a republican form of government.
2. The names Russian Federation and Russia are equivalent.
Article 2
Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.
Article 3
1. The bearer of sovereignty and the only source of power in the Russian Federation is its
multinational people.
2. The people exercise their power directly, as well as through government bodies
and local governments.
3. The highest direct expression of the power of the people is a referendum and free elections.
4. No one can appropriate power in the Russian Federation. Seizure of power or appropriation of power
powers are prosecuted under federal law.
Answer from Neuropathologist[guru]
The bearer of sovereignty and the only source of power in the Russian Federation is its multinational people
Answer from Abandon[newbie]
.No one can appropriate power in the Russian Federation and the only source of power in the Russian Federation is its
multinational people.. The people exercise their power directly, as well as through government bodies. Seizure of power or appropriation of power
powers are prosecuted under federal law. State authorities have seized power and appropriated authority, but are not prosecuted by law. They are the Law, not “the people.”
The latest edition of Article 3 of the Constitution of the Russian Federation reads:
1. The bearer of sovereignty and the only source of power in the Russian Federation is its multinational people.
2. The people exercise their power directly, as well as through state authorities and local governments.
3. The highest direct expression of the power of the people is a referendum and free elections.
4. No one can appropriate power in the Russian Federation. Seizure of power or misappropriation of power is punishable under federal law.
Commentary to Art. 3 KRF
1. This article reveals a number of the most important features of the content of the two principles set forth in: democracy (i.e., democracy) and the republican form of government, which are increasingly revealed in many subsequent provisions of the Constitution of the Russian Federation.
The multinational people of the Russian Federation have been proclaimed the only bearer of sovereignty (power supremacy - state, people's, national; see) and the only source of power in the country. This means that all constitutional powers of public power - state (legislative, executive, judicial) and local self-government in the Russian Federation - come from the people through their freely and directly expressed will and the will of their representatives in government bodies based on it.
The people of the Russian Federation are the sole bearer of its unified power. This unity of power is realized and expressed at the highest level by its direct expression of will in a referendum and free elections. At other levels, the unity of democracy is realized in conditions of separation of powers - through the independent activities of each of them, as well as through the coordination and coordination of their activities, which have either a horizontal (federal, regional or local) level, or a vertical one (between the Russian Federation, its constituent entities and local governments ), as well as through mutual control (a system of “checks and balances”) between authorities divided horizontally or vertically. The unity of actions of divided powers acting in concert within the limits allowed by the approximation of the “mixed” parliamentary-presidential republic of the Russian Federation to the type of presidential republic (including measures to strengthen the vertical of executive power, etc.) and increasing the central controllability of the state apparatus are consistent with the Constitution of the Russian Federation, if they fully consistent with Art. 3, which requires the concentration of supreme power at the directly popular level, and not at the levels derived from it, subordinate to it and, in this sense, “lower” levels.
Of course, this will of the people is not unlimited. The sovereignty of every human person exists and is recognized. A person, his rights and freedoms according to the Constitution are the highest value. Therefore, the Constitution limits state power, obliging it to recognize, respect and protect human rights and freedoms, allowing their restriction or even abolition by the authorities only temporarily and in exceptional cases specifically provided for by the Constitution and, in accordance with it, the law. Proclaiming and enshrining objectively necessary principles of a legal, political, economic and social nature, the Constitution provides for various options, forms and methods for the implementation of each of them by a citizen, society and its state authorities, but does not allow the abandonment of these principles. We are talking about the objectively necessary requirements of life and activity of modern civilized society and state (the rights and freedoms of man and citizen as the highest value; democracy, federation, rule of law; republican system, social and secular character of the state; market economy, separation of powers, effective and rational use and protection of natural resources and the entire environment, etc.).
Without the recognition, observance and protection of these principles, the life and activity of a modern civilized society is impossible, although history knows many examples when the “will of the people” (with or without quotes) was used to indiscriminately deny these principles. Taken together, the listed principles and norms are intended to guarantee that popular sovereignty will not again turn into just a declaration of a totalitarian or authoritarian regime. Since state power exists not only at the federal level, but also in each of all subjects of the Russian Federation - in republics and in territories, regions, federal cities and autonomies equal to them, power in each of them belongs to its people. The people exercise their power not only through government bodies at the two levels mentioned above (federal and regional), but also through local government bodies.
There are different definitions of the concept of democracy (democracy), which correspond to different political positions in relation to this constitutional principle. In particular, in the course of public discussion of the concept of “sovereign democracy”, ideas about democracy simply as “the rule of the majority” appear again without mentioning the power of the entire people and the rights of their legitimate minority, which, therefore, can be neglected. But democracy is based on the need for the coexistence of the government majority with the opposition, which, with public and parliamentary control, freedom of the media, etc. at the next elections may become the majority, turning the former majority into the opposition. Therefore, much more complete, accurate and consistent with the practice of democracy is its understanding as the power of only such a majority that respects and strictly observes the inviolable rights of the minority and of every person and citizen.
Thus, the people act as the bearer of power and exercise it at at least three levels: as a multinational people of all of Russia, as a people (as a rule, also multinational) of each of the constituent entities of the Russian Federation, and as a people (population) of territorial units of local self-government.
2. In part 2 of Art. 3 we are talking about two forms of democracy (democracy): the highest, i.e. direct (immediate), and indirect, indirect (representative), which is not named the highest and is not such.
Immediate (direct) democracy is exercised by the people themselves through the expression of the will of citizens in the form of universal voting (referendum) and in the form of free elections (for example, the President of the Russian Federation, deputies of the State Duma, members of legislative bodies of constituent entities of the Russian Federation, local governments, etc.).
Representative democracy is not carried out by the people directly, but by bodies acting on behalf of the people, i.e. representing him. These are, first of all, government bodies elected by the people - both collegial (for example, the State Duma of the Federal Assembly of the Russian Federation, the parliaments of the constituent entities of the Russian Federation, city councils, etc., which bear various names), and individual ones (the President of the Russian Federation, presidents of the republics within the Russian Federation, mayors of cities, etc.), as well as elected bodies of local government.
In this regard, it is necessary to correct some common terminological errors. The representative (and not direct) power of the people is exercised by not only collegial, but also individual bodies elected by the people. The President of the Russian Federation is the highest representative of the people, and the exercise by him of his constitutional powers is an institution not of direct, but of representative democracy (the same applies to elected individual authorities at various levels).
Representation carried out by public authorities on behalf of the people has a number of degrees: first (bodies directly elected by the people, for example the State Duma, the President of the Russian Federation), second (bodies formed by representative bodies of the first degree, for example the Government of the Russian Federation, the Commissioner for Human Rights), third ( for example, half of the composition of the Accounts Chamber, formed by the Federation Council, which, in turn, is a body of the second degree of representation), etc. Some government bodies are formed by a coordinated decision of not one, but two bodies elected by the people; This is, for example, the appointment of a number of officials: by the President of the Russian Federation with the consent of the State Duma (Chairman of the Government), on the proposal of the President of the Russian Federation by the State Duma (Chairman of the Central Bank of the Russian Federation) or by the Federation Council (judges of the Constitutional Court, Supreme Court, Supreme Arbitration Court, Prosecutor General of the Russian Federation and etc.).
In a democratic state with a republican form of government, there are no state bodies or local self-government bodies at all, the source of power of which would not be the direct or indirect expression of the will of the people and which would not be in the legal sense their representatives, unlike hereditary monarchs and officials appointed by them, not having a formal popular mandate to occupy a certain post and perform the power functions associated with it.
The constitutional relationship between the highest direct form of democracy and its other forms must be respected. Experience shows that their non-compliance can give rise to undesirable consequences, weakening the necessary high level of constitutional legality. Thus, at the beginning of 1993, the people of Mordovia elected its President by direct elections in accordance with its Constitution and the principle of democracy as the unshakable basis of the constitutional system. This caused discontent among the political forces in the republic, which soon, on the basis of the constitutional powers of its parliament, adopted a law abolishing the post of President and ending his powers. Thus, the direct (immediate) decision of the people, in accordance with the Constitution, that the President of the Republic elected by them should fulfill them during his term of office, was canceled by the decision of the representative body elected by these people. This body had the right to abolish the post of President, but since the direct constitutional will of the people, mandatory for parliament, had already taken place, such a decision of parliament could come into force only after the expiration of the term of office of this President or after a corresponding decision made not by parliament, but by the people voting (the so-called abolition referendum). The Constitutional Court of the Russian Federation, referring to the federal structure of the Russian Federation, confirmed the decision of the Mordovian parliamentarians and did not agree with the objections of the President of the Russian Federation B.N. Yeltsin. But over time, similar violations of the constitutional relationship between the highest (direct) form of democracy and its other forms sometimes appear again. The opposition of some political forces and bureaucratic officials to the development of higher forms of democracy continues. For example, this is expressed in replacing the right of the people (voters) to nominate candidates during elections with the right of officials at various levels to do so. Or in the transfer from voters to their representative bodies of the right to elect or form executive authorities of constituent entities of the Russian Federation or local government bodies.
Often in the literature and even in the legislation of the Russian Federation and its constituent entities there is an insufficiently clear distinction between the concepts of a public authority and an official. A public authority is a collegial or individual element of the state apparatus, which is entrusted by the Constitution or the corresponding law with the performance of certain government functions, adoption of government decisions, and publication of relevant regulations. An official is both that citizen who performs the functions of an individual government body, and any other employee of the state apparatus who participates in the preparation of government legal decisions and acts, but is not authorized to adopt them. Officials are also many persons who are not in the public service (heads of enterprises or public organizations, their specialists, etc.). Therefore, the concepts of a body of state power and an official should be clearly distinguished, without denying their partial overlap noted here (in the case of officials who are simultaneously and primarily constitutional bodies of state power, such as the President of the Russian Federation, the Chairman of the Government, etc.).
3. Part 3 of the commented Article 3 of the Constitution of the Russian Federation develops the provisions of its Part 2 on the direct exercise of power by the people, calling a referendum and free elections two forms of the highest expression of this power.
On the one hand, the direct exercise of power by the people, named first, gives the greatest authority to decisions made in a referendum. In this regard, the decision on a number of important issues of public and state life is made by referendum and is final. The role of parliaments, governments, and political public associations is limited to preparation, discussion, and participation in the preliminary public approval of the project for its submission to a referendum. The current Constitution of the Russian Federation of 1993 was adopted by referendum, and after that a number of opposition parties declared their readiness to comply with it and achieve the changes they desired in the manner established by it. The French Constitution of 1958, the Swiss Constitution of 1999 and the constitutions of many other countries were adopted by referendum.
On the other hand, there are a number of serious doubts about the advisability of using a referendum to resolve complex issues.
Firstly, the difficulty of a citizen making his decision on a complex issue is obvious - for example, on the adoption of a draft Constitution or other complex law consisting of hundreds of provisions, each of which a citizen can evaluate differently, and he has the right to answer only “yes” or “ no" once about the entire project, relying, as a rule, on his general impression of it, on the opinions and authority of parliamentarians and specialists, on the positions of political parties that he trusts, etc. For example, in 1947, one of the issues of the Italian Constitution being prepared (the choice between a monarchy and a republic) was decided by the people in a referendum, and the solution of all other issues and the adoption of the Constitution were entrusted to the Constituent Assembly, elected simultaneously with this referendum, consisting of representatives of the parties that defended their positions on other issues of the Constitution.
Secondly, both work on the text of a bill and competent voting on the issue of its adoption very often require special knowledge in various fields, which is often difficult for a citizen, or his interest may not coincide with the public (for example, about the amount of taxes) . Therefore, in many countries, referendums are either not held at all, which limits this highest form of democracy, or are held on important, but relatively simple issues, to which a monosyllabic answer can be confidently and responsibly given.
These considerations are the basis in some countries for the practice of resolving issues on the adoption of a new Constitution, laws on the budget (its revenues and expenditures), on human rights, etc., not by referendum, but in the order of current lawmaking.
A referendum of the Russian Federation, according to , is appointed by the President of the Russian Federation in the manner established by the federal constitutional law (FKZ). This provision is often understood in the sense that the said FKZ must regulate not only the procedure for calling a referendum in the Russian Federation, which is directly provided for in Art. 84, but also the entire procedure for holding referendums in the Russian Federation. This understanding is based on the fact that, according to Part 1 of Art. 108 of the Federal Code are generally adopted on issues provided for by the Constitution of the Russian Federation. Since a referendum is envisaged, i.e. mentioned in the Constitution (Article 3), he in general, and not just the procedure for his appointment, can be the subject of the Federal Law. Therefore, federal constitutional laws regulate the procedure for both calling a referendum of the Russian Federation and conducting a referendum of the Russian Federation, including the exercise by citizens of their right to participate in a referendum.
For a referendum of a subject of the Russian Federation and a referendum of local self-government provided for, a law of a subject of the Russian Federation is required.
In order for a “yes” or “no” answer to a question put to a referendum to be possible and convincing, this question - or if there are several questions, then each of them - must be formulated clearly and unambiguously. Only in this way can new laws and decisions be adopted by referendum, predetermining the main content of state laws or identifying public opinion on other important issues.
In connection with the problem of the referendum as a form of direct democracy in Russia, the question of the results of the USSR referendum on March 17, 1991 still retains its political and legal significance. A number of political parties and politicians, referring to its results, raised the question of restoring the USSR and are now raising the question of legality of its collapse*(1).
The Federal Code of Law "On the referendum of the Russian Federation" (SZ RF. 1995. N 42. Art. 3921) defined in detail the concept of a referendum, the procedure for calling it and preparing for it, voting and determining its results (see). In particular, he did not allow questions on the early termination or extension of the powers of the President of the Russian Federation, the chambers of the Federal Assembly, budget issues, etc. to be submitted to a referendum of the Russian Federation. Questions of the referendum of the Russian Federation should not limit or cancel the generally recognized rights and freedoms of man and citizen. The provisions on the referendum of a constituent entity of the Russian Federation and on the local referendum were of a similar nature.
Significant changes were made by the Federal Law “On the Referendum of the Russian Federation” dated June 11, 2004, many of the provisions of which, apparently, do not fully comply with the provisions of the Constitution related to the referendum, including the fundamentals of the constitutional system of the Russian Federation. Particularly important, in particular, is the significant narrowing of the possibilities for holding a referendum on the initiative of citizens. In addition, this Federal Law excludes the appointment and holding of a referendum not only under a number of conditions (martial or state of emergency), for long periods of time (in the last year of office of the President of the Russian Federation, the State Duma, during the election campaign throughout Russia, except for decision of the Constitutional Assembly or on the basis of an international treaty), such as the prohibition of a second referendum on the same issue for two years, etc. (see comments to Article 84). All this can lead to a limitation in the performance by the people of Russia of their constitutional functions as the bearer of sovereignty and the only source of power in the Russian Federation.
Another form of the highest direct expression of the power of the people, according to Part 3 of Art. 3, are free elections. This is the most important, widely used form of direct democracy, as a result of which citizens create elected bodies of state power and local governments, in whose activities another, representative form of democracy is carried out.
Freedom of elections is expressed in the fact that voters have full opportunity of their own free will, with political diversity and a multi-party system, without any coercion, to participate in elections, including nominating candidates, collecting signatures in their support, campaigning and voting for or against candidates, in public control over the work of election commissions, over the determination of voting results, and in all other electoral procedures in accordance with the law. Therefore, the often expressed understanding of the active suffrage of citizens only as the right to vote is erroneous.
General constitutional provisions directly and directly related to elections and contained in Art. 3 and, are specified in, containing a number of provisions on the elections of the President of the Russian Federation and providing for a more complete definition of this procedure by federal law, as well as on the time of these elections and in, and - on individual issues of elections of deputies of the State Duma (see comments to these articles ). The issue of creating a new draft Electoral Code of the Russian Federation is being discussed, the adoption of which would make it possible to unify all electoral legislation, eliminating numerous repetitions and contradictions contained in individual election laws.
4. Provisions of Part 4 of Art. 3 can be considered as certain conclusions for the future from the experience of the struggle for genuine democracy and against its perversions in our country. Only such power can be recognized as constitutional and legal, the bodies of which, the procedure for their creation, their powers and the procedure for their activities are not only directly defined by the Constitution and the laws strictly corresponding to it, but also the practice of their application complies with constitutional requirements. From this point of view, the numerous self-proclaimed “white”, “red”, “green” and similar authorities that were created during the Civil War in various localities and relied on violence and support from an active anti-democratic minority were illegal. The actual usurpation of state power in the USSR by the apparatus of the only legal party with its nomenklatura, its “leading and directing role”, not bound by the results of necessarily democratic elections, incompatible either with the power of the working people, or with the federal structure of the state and the powers of state authorities, was clearly unconstitutional. not even with some democratic principles included in the texts of Soviet constitutions, but turned into fiction. This government rejected the equality of citizens, the democratic principles of suffrage, the separation of powers, local self-government, etc. The creation of “rescue committees” - the State Emergency Committee at the all-Union level, “rescue” and “state of emergency” committees, etc. was also illegal. in a number of republics and regions - with the aim of seizing or retaining power during the collapse of the Soviet system (1989-1993). This entire experience is incompatible with the Constitution of the Russian Federation. Therefore, it prohibits the appropriation, seizure of power or individual powers and establishes that such actions entail prosecution under federal law (Article 3). Specific forms of liability for such crimes are also defined by the Criminal Code of the Russian Federation: for example, in Art. 141 (obstruction of the exercise of electoral rights or the work of election commissions), 142 (falsification of election documents, referendum documents or incorrect counting of votes) this also applies to other unconstitutional actions of legitimate public authorities, parties, etc. aimed at such purposes.
Equally doubtful from a constitutional point of view is the implementation of a number of proposals to issue laws that actually lead to the restriction of the rights of citizens established by international legal acts and the Constitution of the Russian Federation to participate in the management of state affairs (Article 30, etc.) for these purposes (including including political parties and other organizations to participate in elections), to limit the constitutional freedom of activity of such associations. This is, for example, the restriction of the right of citizens to nominate candidates, reserved only for large parties (in elections of deputies of the State Duma), the President of the Russian Federation (elections of governors) or for governors (elections of mayors in cities). Non-party people are deprived of this right; for them, general and equal elections are largely terminated.
Another example would be the replacement of the highest, i.e. direct, forms of democracy in its lowest, representative form (elections of governors of territories and regions not by voters, but by the legislative bodies of the constituent entity of the Russian Federation), allowing in many cases the election of governors for the third and fourth time in a row under various pretexts (this is either the “will” organized with the help of administrative resources of the people,” or renaming this position, or the adoption of a new law, even still preserving elections for a given post for two consecutive terms, but unfoundedly supposedly “allowing” the counting of these terms to begin again, etc.).
This practice confirms and illustrates the more general position of researchers who state that the constitutional provisions of Russia as a democratic, legal, social state are not fully implemented, are sometimes grossly violated, and the people are increasingly removed from power. There is also no effective system for protecting citizens from arbitrariness, lawlessness, abuse of power, social injustice, illegal privileges for some at the expense of other citizens, from the irresponsibility of government officials to citizens, from departmental, regional and local lawlessness, from bureaucracy and corruption. Therefore, the implementation of effective democracy in many specific forms requires a long time and efforts of the people and the state to overcome all difficulties, obstacles, manifestations of traditional legal nihilism, etc. (see: Kozlova E.I., Kutafin O.E. Constitutional law of Russia. M.: Yurist, 2004. P. 140, 146-147, 152, 278, etc.).
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1. The bearer of sovereignty and the only source of power in the Russian Federation is its multinational people.
2. The people exercise their power directly, as well as through state authorities and local governments.
3. The highest direct expression of the power of the people is a referendum and free elections.
4. No one can appropriate power in the Russian Federation. Seizure of power or misappropriation of power is punishable under federal law.
Commentary on Article 3 of the Constitution of the Russian Federation
A referendum as the highest direct expression of the power of the people, within the meaning of the Constitution, cannot be aimed at denying the legal free elections that have taken place, which are also the highest direct expression of the power of the people, since in fact this would lead to a revision of their results and, as a consequence, to a violation of stability and continuity of functioning public authorities.
The institution of a referendum of a subject of the Russian Federation, due to the integrity of Russia and the unity of the system of state power, conditioned by the sovereignty of its multinational people (Part 1, Article 3), should not be used to oppose the will of the population of a subject of the Russian Federation to the will of federal legislation.
The norms of the Constitution do not prevent the possibility of introducing by federal law the institution of recall of the highest official (head of the highest executive body of state power) of a constituent entity of the Russian Federation. At the same time, however, the federal legislator must take into account the relationship between the forms (institutions) of direct democracy arising from parts 2 and 3 of Article 3 of the Constitution of the Russian Federation. Recall, as one of these forms, should not be used to destabilize elected institutions of government and, ultimately, democracy itself. Consequently, the legislator, if he introduces the institution of recall, is obliged to provide for the general principles of the recall mechanism so that the very meaning of elections is not distorted (see Resolution of the Constitutional Court of the Russian Federation of June 7, 2000 N 10-P).
Elections mean the participation of citizens in the exercise of the power of the people through the selection from their midst by voting of representatives to perform in state bodies or local governments their functions in the exercise of power in accordance with the will and interests of citizens expressed in elections.
The main thing about elections is that they are a form of citizens exercising their power. The most significant feature of elections is the direct expression of the will of citizens and their nomination from among themselves of representatives for the implementation of democracy. This is fully consistent with the rule according to which the right to participate in government, primarily active and passive suffrage, is granted to citizens of a particular state, i.e. persons with citizenship. Suffrage is the right of a citizen, not just a person. See also comments to Art. 32, 81, 84 (item “a”), 96, 97, 109, 130.
Elections of state bodies and local self-government bodies provided for by the Constitution are free and conducted on the basis of universal, equal and direct suffrage by secret ballot.
By independently establishing the system of their public authorities and forming them, the subjects of the Russian Federation are obliged to act in accordance with the fundamentals of the constitutional system of the Russian Federation, including the principle of free elections, guaranteeing the freedom of expression of citizens and without violating democratic principles and norms of public law (see Resolution of the Constitutional Court of the Russian Federation dated 04/27/1998 N 12-P*(4)).
Proclaiming referendum and free elections as the highest direct expression of the power of the people and guaranteeing in Part 2 of Art. 32 the right of citizens of the Russian Federation to participate in free elections and referendums, the Constitution, as noted by the Constitutional Court of the Russian Federation, proceeds from the fact that the above-mentioned higher forms of direct democracy, each having its own purpose in the process of implementing democracy, are equivalent and, being interconnected, complement each other . The sequence of their listing in Art. 3 of the Constitution (referendum - free elections) does not give grounds for concluding that a referendum is given a priority role, nor does it indicate the priority role of free elections, which, defining the right of citizens to participate in the direct exercise of democracy, first names the right to elect and be elected to public bodies authorities, and then the right to participate in a referendum (see Resolution of the Constitutional Court of the Russian Federation of June 11, 2003 N 10-P).
Due to the interrelated provisions of Part 1 of Art. 1, part 3 art. 3 and parts 1 and 2 art. 32 of the Constitution, electoral rights as subjective rights act as an element of the constitutional status of the voter, at the same time they are an element of the public legal institution of elections, they embody both the personal interest of each individual voter and the public interest, realized in the objective results of elections and the formation of this basis of public authorities.
Within the meaning of Part 1 of Art. 1, part 3 art. 3, part 3 art. 17 and in their interrelation, constitutional values associated with the implementation of electoral rights may come into a certain contradiction with each other, since the interests of individual voters, which predetermine their expression of will in the election process, including by voting “against all candidates,” do not always coincide with the public interest of the formation of public authorities. At the level of the constitutional and legal status of the individual, this is, on the one hand, the right of every citizen to take part in the election of representatives of the people in elected bodies of public power and to be elected as such a representative, and on the other hand, the right of every citizen, at his own discretion, to refuse trust to some or all candidates participating in the elections; at the level of the institution of elections as a whole, this is the formation of public authorities, their representative and legitimate character (see Resolution of the Constitutional Court of the Russian Federation of November 29, 2004 N 17-P * (5)).
4. The Constitution states that no one can appropriate power in the Russian Federation. This means that the state recognizes as legitimate only such possession of power that is based on the law and the procedures established by it. Any other acquisition of power or authority is recognized as unlawful and entails liability.
The purposes of protecting the constitutional system from unlawful attacks are served by the norms of the Criminal Code on liability for crimes against the interests of the public service, justice, governance (Chapter 30 -), all provisions of legislation obliging the state to guard the right of citizens to elect and be elected, to participate in a referendum ( Art. 141), as well as other constitutional rights and freedoms of citizens
1. The bearer of sovereignty and the only source of power in the Russian Federation is its multinational people.
2. The people exercise their power directly, as well as through state authorities and local governments.
3. The highest direct expression of the power of the people is a referendum and free elections.
4. No one can appropriate power in the Russian Federation. Seizure of power or misappropriation of power is punishable under federal law.
This article enshrines the principle of democracy (popular sovereignty), which determines the foundations of the organization of a democratic state, the affiliation and main forms of exercise of public power in it.
Part 1. The bearer of sovereignty in the Russian Federation is its multinational people, who act as a single entity uniting all citizens who have an equal legal connection with the state, regardless of nationality, social status and other circumstances. In Russia there are over a hundred different nations, nationalities, and ethnic groups, united by a common destiny on their land and constituting a single multinational people of Russia.
People's sovereignty is thus primary in relation to the sovereignty of the state: it underlies the state sovereignty of the Russian Federation. Recognition of the people as the bearer of sovereignty means that it is the people as a single whole that is the basis of statehood, the source of power in the state, that they have supremacy in resolving issues of the structure of the state and society.
The principle of popular sovereignty also means that the people are the only source of power in the state. It is the sovereign will of the people, expressed in a referendum and elections, that ultimately determines the legitimacy of the powers of public authorities in the state.
Part 2 of this article establishes the main forms of the people’s exercise of their power:
Directly (through referendum and free elections);
Through public authorities;
Through local governments.
Thus, it is possible
firstly, to highlight the forms of direct and indirect exercise of the power of the people (public power). At the same time, the indirect exercise of the power of the people is manifested not only in the activities of representative bodies of power elected directly by the people, but also in the activities of other public authorities in the state (executive, judicial).
secondly, this article allows us to distinguish in the general system of public power: state power, exercised by public authorities, and the power of local government (municipal power), exercised by local governments.
Therefore, we can conclude that public power in the state (the power of the people) has two main forms: the form of state power and the form of local government (municipal power).
Public authorities at all territorial levels ultimately have a single source of their authority: the sovereign will of the multinational people of Russia.
According to parts 3 of this article, the principle of popular sovereignty determines the special significance of such forms of direct expression by the people of their sovereign will, such as referendums and free elections, which are the highest direct expression of the power of the people. The people, expressing their will in a referendum and free elections, independently decide the most important state and public issues, determine the composition of public authorities elected by them, and ensure the democratic legitimation of power in the state.
IN parts 4 This article determines that power in the state belongs to the multinational people of Russia as a whole: no part of the people (class, social class or group), no one else can appropriate power in the Russian Federation.
The seizure of power or the appropriation of power is a violation of the constitutional foundations of popular sovereignty, the foundations of the constitutional system of Russia and is prosecuted under federal law.
The Criminal Code of the Russian Federation provides for criminal liability for actions aimed at the violent seizure of power or forcible retention of power in violation of the Constitution of the Russian Federation, as well as those aimed at forcibly changing the constitutional system of the Russian Federation (Article 278 of the Criminal Code), as well as for public calls for the violent seizure of power, its forcible retention or forcible change of the constitutional system of the Russian Federation (Article 280 of the Criminal Code).
The emergence of state sovereignty was the result of the development of social relations. Sovereignty could not arise overnight, without the presence of appropriate prerequisites.
Like any phenomenon that arose during evolutionary development, it has a source of its origin, a starting point of its formation. Sovereignty cannot exist without real support from its bearer, whose interests and will it expresses.
The categories “source” and “carrier” of sovereignty are important in characterizing the essence of state sovereignty. Their definition allows us to understand sovereignty as an objectively established quality of the state, and not a purely legal construct and a populist political slogan.
The term "source" is defined as "that which gives rise to something, from which something comes." A “carrier” is “one who is endowed with something, can serve as an exponent, a representative of something.”
The concepts “source of sovereignty” and “bearer of sovereignty” have different meanings. However, these concepts are often identified. So, M.V. Baglay notes: “The sovereignty of the state comes from the sovereignty of the people. The people are the creator and bearer of the sovereignty of the state; the will of the people gives rise to state power.”
L.Yu. Chernyak considers the source of sovereignty in three main senses: epistemological, material, political and legal.
The author proposes to understand the source of sovereignty in the epistemological sense as the source of obtaining knowledge about sovereignty. These are political and legal doctrines, legislation, and law enforcement practice. The source of knowledge about sovereignty and sovereignty are different phenomena, and consideration of the source of sovereignty based on epistemological meaning has no scientific significance.
In material terms, according to L.Yu. Chernyak, the source of sovereignty is understood as the material (actual) conditions for the exercise (implementation) of state sovereignty. In this sense, there are three types of foundations of sovereignty: political, economic and legal. The political basis of sovereignty can be represented as
the presence of a developed and stable political system, the quality of which is determined by the relationship between its individual institutions (state and parties, etc.). The economic basis of sovereignty should be called the actually established economic system, the property system, as well as the real material resources of the state (gold and foreign exchange reserves, mineral wealth, etc.). The legal basis of sovereignty is understood as a system of domestic legislation and international law.
It seems that it makes sense to consider the material foundations of sovereignty when characterizing an already established state, but they cannot be considered as a source of sovereignty.
The analysis carried out above showed that sovereignty is an integral political and legal phenomenon, and therefore, the source of sovereignty can also be considered in a political and legal sense.
So, L.Yu. Chernyak provides the following classification of views on the source of sovereignty.
- 1. Historically, the first was the theory of the transcendental source of sovereignty. This position was adhered to by the founder of the theory of sovereignty, J. Bodin. This concept also prevails in Islamic states, where there is a high degree of religiosity among the population.
- 2. The development of the natural law tradition in law brought to the fore the theory of the origin of power from the people. The source of sovereignty is also expressed here in the will of the people. This tradition prevails in modern political and legal doctrines, constitutional practice and international relations.
- 3. In accordance with the following point of view, the source of sovereignty was seen in state power (V.S. Shevtsov, S.R. Vikharev). This position is based on the thoughts of V.I. Lenin that in the general system of organization of the state, state power comes first, and all other organizations follow it.
- 4. In monarchies, the monarch is traditionally considered the source of power and sovereignty. His powers are primary, not derived from any power in the state; he acquires his post, as a rule, by inheritance and occupies it for life.
- 5. Sometimes, to justify the sovereignty of a federal state, based on the contractual theory of the origin of the federation, the subjects of the federation and their sovereignty are recognized as the source of sovereignty.
- 6. The synthetic theory asserts that the national sovereignty of the federation has a double source: the will of the entire population of the federal state and the will of the population of its individual subjects of the federation, and the basis of state sovereignty is popular sovereignty or national sovereignty simultaneously combined with the people.
The above list of views on the source of sovereignty is not exhaustive. Due to the fact that sovereignty is a controversial category, there cannot be a single view on its origin.
Despite the scientific development of the approaches outlined above, it should be noted that the source and bearer of sovereignty are often confused. The foundations characteristic of an already formed state are recognized as a source. Therefore there is a contradiction here. The source of sovereignty must lie outside the state, and when the state has already taken place, there is only the bearer of sovereignty, i.e. the one who holds state power.
Therefore, to characterize the source of sovereignty, it is necessary to turn to theories of the emergence of the state. After all, it is with the formation of a state that state sovereignty appears.
In science, there are many theories of the origin of the state. Let us characterize some of them and determine the source of sovereignty for each.
Theological theory. Its main thesis is that the state, like the whole world, is the result of divine creation (“all power comes from God”). State power is eternal and people must submit to the state without complaint.
If you follow this theory, then the source of sovereignty is God, that is, a certain transcendental principle. This theory appeared and is developing in conditions of increased religiosity of society and is not suitable for scientific research.
Contract theory. It received full development during the New Age - XVII - XVIII centuries. (G. Grotius, T. Hobbes, J. Locke, etc.). The fundamental idea of this concept is that the state arose as a result of the conclusion of a social contract as an instrument for expressing the general will. People have freely agreed to create governments that act on their behalf and can be removed by them.
According to this theory, sovereignty originates in the general will of the people. The people, in exchange for security and other benefits according to the agreement, recognize the supremacy of the government, which, expressing the general will, has the right to subjugate every citizen, acting in the interests of society.
The theory of violence was developed in the 19th century. (L. Gumplowicz, E. Dühring, K. Kautsky). Its starting point is that the state arises as a result of violence, usually conquest. Those who win become the ruling class, those who are defeated become subordinates.
Here, the source of sovereignty is thought of as the will of the strongest, subordinating the will of others.
Psychological theory (L. Petrazhitsky). The emergence of the state is explained by the properties of the human psyche, the individual’s need to live in a group, his desire to search for authority, whose instructions could be guided in everyday life, the desire to command and obey.
The source of sovereignty, according to this theory, is the human psyche. That is, the supremacy of a certain power is explained by the recognition of its authority at the level of consciousness of the state-organized people.
Marxist doctrine (K. Marx, F. Engels, V.I. Lenin). According to this theory, the state is the result of changes in socio-economic relations, the mode of production, the result of the emergence of classes and the intensification of the struggle between them. It acts as a means of oppressing people, maintaining the dominance of one class over others. However, with the destruction of classes, the state also withers away.
According to this theory, the source of sovereignty is the will of the ruling, primarily economic, class. Since this class is the owner of the means of production, other classes are dependent and forced to carry out its will.
Summarizing the above, it should be noted that sovereignty as a political and legal phenomenon arose together with the state.
In a political sense, the source of sovereignty must be recognized as the volitional actions of a certain subject, which served as the reason for the formation of the state. For example, if we take the most common theory of the emergence of the state - contractual, then individuals who transferred power to the state under a social contract by their will formed sovereignty, that is, the supremacy of state power.
From a legal point of view, the formation of a state is also associated with a certain legal act (agreement, constitution, declaration of independence, etc.). Thus, taking into account the political and legal essence of sovereignty, it is necessary to propose the following definition of the source of sovereignty.
The source of sovereignty is the volitional actions of a politically organized subject, which led to the formation of a state and the legal consolidation of the properties of sovereignty in the corresponding constituent legal act.
The concept of the bearer of sovereignty is directly related to the source of sovereignty. The bearer of supreme power, the sovereign, according to K. Schmitt, is the subject (subjects) of power activity who has the right to make final decisions on the most important issues of national life, that is, who actually owns state power, who it serves and whose interests it expresses .
The question of the bearer of sovereignty in political and legal thought is debatable. Just as with the source of sovereignty, there are several concepts for understanding the bearer of sovereignty.
One of them is a theory that recognizes the bearer of the sovereignty of God, the transcendental principle. This point of view is typical for societies characterized by a high influence of religion on public life. An example is medieval European states influenced by the Catholic Church, as well as Islamic states, which even today recognize the priority of religion over secular power.
In accordance with the Sunni concept, the supreme bearer of sovereignty in the caliphate (state) is Allah, and the Muslim state is built entirely on the basis of the mandate given by him to the community. It was believed that in the name of Allah, the highest power on earth is exercised by the community, which has complete sovereignty, which is nothing more than a reflection of the supreme sovereignty of Allah. In contrast to this approach, the Shia concept believed that sovereignty belongs exclusively to Allah and on his behalf all Muslim affairs are led by an imam, who obeys only the Sharia, which reflects the will of Allah, and is not bound by the will of the community.
Jacques Maritain determined that sovereignty belonged to God, but at the same time, however, he generally denied sovereignty as a sign of the state. He noted that “neither the ruler, nor the king, nor the emperor were really sovereign, although they had the sword and the attributes of sovereignty. The state is not sovereign, and even the people are not sovereign. God alone is sovereign."
The idea of sovereignty belonging to God, Allah, cannot be applied to the scientific consideration of the problem of the bearer of sovereignty. Firstly, a transcendental principle, the existence of which is unreliable, cannot be the bearer of a really existing phenomenon; secondly, if we recognize God as the bearer of sovereignty, then we can conclude that states whose main religion does not provide for the existence of a supreme deity cannot be recognized as sovereign, which is absurd.
The theory that recognizes law as the sole bearer of sovereignty is quite controversial. Representatives of this theory were Krabbe, G. Kelsen, F.F. Kokoshkin.
G. Kelsen, in particular, believes that the state is identical with law, the state is the personification of the legal order. Krabbe, in his work “The Sovereignty of Law,” unlike G. Kelsen, recognizes law as the bearer of sovereignty only of modern legal states.”
Just like the theory of the transcendental bearer of sovereignty, this theory cannot be recognized, since it is characterized by extreme jurisprudence and does not take into account the actual basis of state power.
The fact that sovereignty is a sign of a state suggests that it is the state that is the bearer of sovereignty. In particular, M.I. Baytin considers the state to be the sole bearer of sovereign power.
As noted by M.N. Marchenko, “the fact of consolidating the ownership of state sovereignty to the state as a whole, and not to state power or its other attributes and components, along with other facts, indicates the inconsistency of the thesis that sovereignty is a property of state power or “state power itself.”
L.M. Romanova, on the contrary, understands as a subject possessing sovereignty “the highest power standing at the top of the power hierarchy.”
CM. Gabieva recognizes the triple bearer of sovereignty - “people, nation, state.” Apparently, the position of S.M. Gabieva is based on the recognition of the sovereignty of the people and the sovereignty of the nation as separate types of sovereignty. However, as already noted, this assumption is controversial.
The provisions of the constitutions of some countries, for example, Portugal and Ireland, also indicate that sovereignty belongs to the state.
Recognition of a state as a bearer of sovereignty is generally satisfactory only for international legal relations, as a justification for independence. To explain the supremacy within the country, this position faces a number of contradictions and does not show the basis of sovereignty, therefore this position cannot be considered satisfactory.
In general, there are many more theories related to the previous one about the ownership of state sovereignty. One way or another, it was proposed to recognize state power, one or more state bodies, or the entire system of government bodies, the international community, etc. as the bearer of sovereignty. However, the most developed and practical were the class theory of sovereignty and the theory of popular sovereignty.
Class theory recognizes the ruling class as the bearer of sovereignty. This concept comes from the teachings of dialectical materialism (Marxism) and was dominant in the Soviet Union and other socialist countries. According to this doctrine, with the help of the state, the ruling class exercises its power and is the bearer of sovereignty.
I.D. Levin recognized the working class as the bearer of sovereignty. He noted: “The power of the working class rests on the will and active support of all working people, who have realized that the interests of the dictatorship of the working class are the interests of the whole people. The people's sovereignty of the Soviet state is the dictatorship of the working class, based on an alliance with the peasantry...”
In Soviet literature, a tradition emerged of dividing the population into the bulk of the people (the working people) and the remnants of the exploiting classes, which in theory and in practice were excluded from the exercise of sovereignty. The “remnants of the exploiting classes” had to disappear over time, and therefore B.L. Manelis divided the development of the principle of Soviet sovereignty (popular sovereignty) into 3 stages: at the first stage, “during the construction of socialism,” Soviet sovereignty expressed the dictatorship of sovereignty directed against the remnants of the exploiting classes; at the second stage, “during the victory of socialism,” it expressed the dictatorship of the proletariat during developing into a state of the entire people, at the third stage “during the period of extensive construction of a communist society” it expresses the sovereignty of the entire people.
The above theories were reflected in constitutional acts. Thus, the Constitution of the USSR of 1936 contained a provision that all power in the USSR belongs to the working people of the city and countryside. The Constitution of the USSR of 1977 somewhat expanded the composition of the class of bearers of sovereignty, and indicated that the social basis of the USSR was an unbreakable alliance of workers, peasants and intelligentsia.
Class theory, despite its contradictions, had a huge influence on the development of political and legal thought. Defending the interests of the proletariat class, which was identified with the people, it contained more authoritarian than democratic provisions. The undoubted advantage of this theory is that within its framework the thinkers’ gaze was directed into the depth of sovereignty, an attempt was made to justify the ownership of sovereignty by specific bearers and to separate actual (political) sovereignty from its external expression (legal form).
The most common theories are those that recognize the people as the bearer of sovereignty. Along with the concept of “people”, the concept of “nation” is often used to designate the bearer of sovereignty. It is sometimes noted that a people is recognized as “not just the population of a given territory, a certain sum of individuals living on it, but at least a certain economic and cultural-historical integrity, aware of its unity. If we are talking about a nation, a linguistic community is also added here.”
F.F. Konev gives the following definition of a nation. “A nation is a historically established community of people united by a common territory of residence and subject to common laws, i.e. to the state." Further, the author believes that this definition actually equates the concepts of “people” and “nation” and cites as an example the multinational states of the USA and Switzerland, whose population is fully aware of themselves as belonging to one nation.
In general, we should agree with the point of view that the concepts of “people” and “nation” actually mean the same thing, but “people” is a more accurate concept for our purposes.
K.E. Gharibyan sees the sovereignty of the people as “the legal and actual possession by the people of all state power to the extent that the people are its only source and bearer.”
The idea of sovereignty belonging to the people has its roots in the ideas of modern thinkers. G. Grotius recognizes the people as the bearer of sovereignty, but not for all forms of government, but only for democratic ones.
A significant development of the idea that sovereignty belongs to the people was carried out by J.-J. Rousseau. By the people, as the bearer of sovereignty, Rousseau understands all participants in the social agreement, and not some special layer of society. In this regard, Rousseau even provided for the possibility of calculating the share of each individual in general sovereignty. At the same time, sovereignty, in his opinion, cannot be alienated from its bearer, that is, the people. After all, only power can be transferred, but not will.
The ideas of Rousseau and other representatives of the natural law tradition determined the vector of further development of the Western bourgeois world. The abstract thoughts of the theorists of popular sovereignty acquired real expression in constitutional acts and the socio-political system of states.
Currently, the people are recognized as the bearer of sovereignty in the constitutions of states with a democratic form of government.
An indication that the supreme power belongs to the people is contained in the constitutions of Germany, France, Poland, Japan, Russia, Kazakhstan, etc. For example, in Art. 4 of the Constitution of the Republic of Poland of April 2, 1997 states that the supreme power in the Republic of Poland belongs to the nation; The French Constitution states: national sovereignty belongs to the people, who exercise it through their representatives and by referendum; The Constitution of Japan contains a provision that the emperor is a symbol of the state and the unity of the people, his status is determined by the will of the people, to whom sovereign power belongs.
A similar provision is contained in the Constitution of the Russian Federation. According to Part 1 of Art. 3 of the Constitution of the Russian Federation, the bearer of sovereignty and the only source of power in the Russian Federation is its multinational people.
Such unanimity in understanding the bearer of the sovereignty of the people (nation) speaks not so much about the truth of this provision, but about its declarative nature and insufficient elaboration in accordance with realities. The fact is that state power cannot be exercised on behalf of and in the interests of the entire people, since the population is heterogeneous in its views, property and official status and other factors. In addition, to substantiate the position that sovereignty belongs to the people, one cannot proceed only from the state-legal reality of the countries of the so-called “developed democracy”. The developed concept of sovereignty and its bearer must be applicable to every state, therefore it is necessary to consider the sovereignty of those states that do not fit into Western standards.
In order to clearly determine who or what is the bearer of state sovereignty, it is necessary to take into account its two sides - legal and political. Ignoring the existence of these aspects regarding the definition of sovereignty leads to confusion and the existence of many theories, often mutually exclusive.
The definition of the legal aspect of the bearer of sovereignty is beyond doubt. Law is a form of expression of government regulations and whatever the bearer of power, his will is expressed in a system of generally binding norms and a system of authorities called upon to implement this will on his behalf. That is, the legal (formal) bearer of sovereignty is the government authorities and the legislative system. This provision applies to any state, since the system of authorities and legislation are its necessary elements. There may be different forms and types of states, coups d'etat may occur, but still a system of legislation and a system of government bodies is present. These elements can only disappear with the state, which is unlikely.
Political (actual) sovereignty is a certain volitional principle, a center for making fundamental decisions. The decisions emanating from him are undeniable for all members of society and are provided with the possibility of coercion.
To characterize the political bearer of sovereignty, the theories of class and popular sovereignty are most applicable, but they also have many shortcomings and contradictions.
Thus, the theory of popular sovereignty assumes that power comes from the people and is exercised through democratic procedures (elections and referendums). However, through elections, even in democratic countries, authorities are determined that express the will of not the whole, but a part of the population. A referendum is held only on certain issues and the decision made in a referendum does not express the general will, but the will of the majority.
Thomas F. Remington notes that to balance public interests, democracies have developed complex decision-making structures to respect the right of minorities to participate in politically important decisions. This understanding of democracy is called “proceduralism” and it does not fit in with such democratic features as a focus on public welfare and class equality.
The disadvantage of class theory is that the bearer of sovereignty is determined by an economically determined class. That is, social stratification occurs depending on the property status of individual groups of society. While recognizing as true the idea of representatives of class theory that sovereignty belongs to a certain dominant group of people, we cannot agree that the economic factor is decisive. The economic component, of course, is important, however, along with it, other factors also operate, such as ideology, religion, nationality, etc.
It is also necessary to define the concept of a bearer of sovereignty based on the political and legal essence of this phenomenon. Therefore, the bearer of sovereignty should be recognized as a social group consolidated according to certain characteristics, which has the ability to exercise supreme power in a given society and exercises it through the system of legislation and the structure of government bodies.
Thus, the source of sovereignty is the volitional actions of a politically organized subject, which led to the formation of a state and the legal consolidation of the properties of sovereignty in the corresponding constituent legal act.
The source of sovereignty must lie outside the state, and when the state has already been formed, there is only the bearer of sovereignty, i.e. the one who holds state power. Since in science there are several theories regarding the origin of the state, then the understanding of the specific source of sovereignty must be considered through the prism of a specific theory of the origin of the state.
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