Mikhail Fedotov on the poor quality of legislation and what is wrong with the education bill, apart from its essence

27 March 2021

by Mikhail Fedotov, legal expert and professor

Source: Moscow Helsinki Group [original source: Новая газета]

Any day now, the Federation Council will consider legislation passed by the State Duma “On Amendments to the Federal Law ‘On Education in the Russian Federation,'” known to the public as the law on educational activity. If the senators approve the legislation passed in the State Duma, it will be sent to the President for a signature. The President can then sign the bill into law or send it to the Constitutional Court for review and then sign it. Or he can not sign it, because, to put it lightly, the legislation was poorly put together. The question boils down to this: is someone going to pull the emergency break on this conveyor belt, or will yet another batch of shoddy legislation become a part of the Russian legal system?

To prove our statement, let’s consider the provision that’s proposed to be included in Article 105 of the federal law on education. It says: “The execution by educational organizations, with the exception of federal state educational organizations under the jurisdiction of federal state bodies, of contracts, as described in part 3 of this article, except for contracts for rendering educational services to foreign citizens, is subject to an assessment by the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of higher education, or the federal executive body responsible for developing and implementing state policy and legal regulation in the field of general education.” Simply put, schools and universities have the right to participate in international collaborations only if the Ministry of Education or the Ministry of Education and Science of Russia, respectively, is involved. Exceptions are only made for schools and universities under federal control.

But it’s not that simple, since the legislation continues as follows: “For federal state educational organizations under the jurisdiction of federal state bodies, approval is issued by the federal state body governing the relevant educational organizations.” In other words, the exception that was made for federal schools and universities in the first statement means nothing. Let’s take Adygeisky State University, a Federal State Budgetary Educational Institution of Higher Education, as an example. According to the first statement, this institution does not need Ministry of Education approval, but according to the second statement, it does. And the wording is so strange: “a federal state organization under the jurisdiction of federal state bodies.”

Can this type of organization even be run by regional or municipal authorities?

I can guess what the legislators were trying to say here, but what they actually said is what’s written here. Laws are built into the legal system based on how they’re written, not how they’re meant. If they’re written carelessly, they won’t work well and can affect other laws, muddying the entire legal system. That’s why precision is so important for every law being written.

There are other serious flaws in the legislation on educational activities. For example, how can you asses the regulations according to which “educational activities are carried out by government authorities”? If you believe the current legislation, then educational institutions, museums, clubs, theatres, and various NGOs are engaged in educational activities in our country, but ministries and government departments are certainly not, nor are legislative assemblies or courts.

And how are we supposed to understand the words “agitation, propaganda,” if we recall from school that a collective propagandist is not the same as a collective agitator or a collective organizer? Legislation (such as the Code of Administrative Offences of the Russian Federation) clearly distinguishes between agitation and propaganda.

The wording on the impermissibility of using education activities “to encourage actions contrary to the Constitution of the Russian Federation” also raises questions. I like, for example, that the ban extends to exhortations to establish censorship or the restriction of human or civil freedoms and rights, but I am afraid that the authors of the text had something else in mind. 

Maybe they wanted to write about the impermissibility of using educational activities to commit criminal acts. Why didn’t they write that?

Unfortunately, the law on educational activity, which has caused so much discussion in wider society, isn’t the only example of poor-quality lawmaking. Similarly, on 30th December 2020 in the federal law on “assemblies, rallies, demonstrations, processions and pickets” changes were made to the status of journalists attending public events in order to cover them in mass media. Carefully reading these works, it is evident  that journalists must have “clearly visible distinguishing marks (signs) of a representative of the mass media” (clause 5, article 6) which they may not conceal (subclause 7, clause 5, article 6) and simultaneously they are… forbidden from “using a distinguishing sign (symbol)” of a representative of the mass media (subclause 4, clause 3, in unity with clause 6, article 6). Moreover the type and description of this distinguishing sign is still not confirmed. Either way journalists who go and cover protests are doomed; if they wear a press gilet they have broken the law and if they don’t they have also broken the law. If they hide the gilet, they have broken the law again. I don’t think that lawmakers deliberately created this legal trap, but they created it all the same and won’t hurry to correct it. 

Our legislature riddled us one more mystery on 30th December 2020 when they carried out changes to the law “on information, information technology and on the protection of information” and “on measures of influence on persons involved in fundamental violations of human rights and freedoms, the rights and freedoms of citizens of the Russian Federation”. In the first law it wrote that owners of social media are obliged to monitor content and block accounts of which the aim was to defame a citizen or certain category of citizens on the basis of gender, age, race or nationality, language, attitude to religion, profession, place of residence or work… in the second it established sanctions for the introduction by the social network owner of restrictions on the dissemination of information on the grounds of “nationality, language, origin, property and official status, profession, place of residence and work”. 

A paradoxical picture appears. For example, if someone were to write on Twitter that so-and-so is a bad person because they live in Chertanovo and work in the State Budget Institution as a housing worker, and the social media owner doesn’t restrict access to such an account then they break article 10.6 of the law on information. On the other hand, if they restrict access then they break article 3.3 of the law. 

It can only be hoped that the new composition of the State Duma will take more care of the domestic legal system, and the Federation Council will more strictly evaluate the work of the lower house of parliament.

Translated by Nina dePalma and Ruairidh Irwin

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