Power Imbalance and Institutional Interests in Russian Constitutional Engineering
Power Imbalance and Institutional Interests in Russian Constitutional Engineering
Abstract and Keywords
Describes Russia as an incomplete democracy, in which a compromise regarding constitutional engineering was never reached and important decisions regarding power‐sharing were postponed, ultimately leading to the institutionalization of a super‐presidential regime created through brute force. The chapter emphasizes that Russia was the only post‐communist country that experienced a military intervention after democratic elections had taken place. The first part of the chapter focuses on how the process of amending the 1978 Russian Constitution deteriorated into a power struggle between the parliament and the president and describes the institutional structure that resulted from this contentious process. Finally, the chapter demonstrates how the Russian Constitution, which set clear rules for the institutional game but without respect for the division of power principle, has contributed to state weakness. It is emphasized that by concentrating power in the presidency, the executive has become overburdened and the state ineffective.
In Russia, the communist legacy has been at least as strong and pervasive as in the other post‐communist countries of Central and Eastern Europe. In most countries of the region, this legacy has been tamed through patient bargaining and eventual compromise on the balance of powers, regime type, and other crucial choices necessary for building a strong foundation for democratic consolidation. However in Russia, compromise was never reached, important decisions regarding power‐sharing were postponed, and as a result, a super‐presidential regime was created, not through negotiations and compromise, but through brute force. Russia is the only post‐communist country that experienced a military intervention after democratic elections had taken place. When tanks and police were sent to the White House in September 1993 to bar parliament from meeting, President Boris Yeltsin succeeded in ending the stalemate between competing branches of power, but the underlying causes of the conflict were hardly resolved. The roots of this conflict are found in the weakness of civil society and political party organization. Without organized interest groups or ideologically based political parties, elected representatives had—and continue to have—nothing on which to base their policies other than the pursuit of self‐interested goals. Moreover, the institutionalized state structure that gave the president a monopoly of power only aggravated the accountability deficit and pushed civil society further from the decision‐making process. Far from creating the basis for another revolution, one prognosis for Russia's ‘incomplete democracy’ seems to describe the situation well: ‘the overthrow of democratic institutions appears less a threat than the persistence of [a] regime in (p.270) which the populace expects elected governors to be dishonest and unaccountable, and elite behavior meets these expectations. Such an incomplete democracy can persist indefinitely, but it will be a “broken‐backed” democracy that is inefficient and often ineffective, and supported by its citizens as a lesser evil rather than because it is good in itself.’1
In the first part of this chapter, I will focus on how amending the 1978 Russian Constitution deteriorated into a power struggle between parliament and the president and how it affected constitutional engineering. Next, I will describe the institutional structure that resulted from the constitution‐drafting process. Finally, I will demonstrate how the Russian Constitution, which set clear rules for the institutional game but without respect for the division of power principle, has contributed to state weakness. By concentrating power in the Russian presidency, the executive has become overburdened and the state ineffective.
The attempt by political forces participating in the constitutional process to promote their own interests is not surprising.2 Usually, the constitutional balance of power between the legislative and executive is proportional to the willingness of the political forces involved in constitution drafting to compromise. In Russia, however, compromise during constitution drafting was eclipsed by excessive institutional competition. In post‐communist countries, such power struggles were prevalent for at least three reasons; an institutional vacuum remained after the communist system was toppled, democratic elites targeted institutions while manœuvring for political clout, and, perhaps most importantly in the Russian case, there was an absence of strong parties and loyal constituencies.3 In Russia, this combination of factors culminated in a stubborn fight for power between the legislature and the president. Institutional warfare was waged, figuratively speaking, on two fronts. At one level, political forces focused on amending the 1978 Soviet‐era (p.271) Russian Constitution while, at the other, both the parliament and the president organized their own committees to work on separate constitutional drafts concurrently. Thus the constitutional‐drafting process in the formal legal sense was understood as the simultan‐eous process of amending the acting Constitution while working out drafts of a new one.4 This process was one in which both sides resisted compromise and became the pretext for the bloody conflict in October 1993 and the imposition of a constitutional model which strongly favoured one side, the president.
The separation of powers had never been an important constitutional principle during the Soviet period. Throughout most of the Soviet era, in constitutional terms executive and legislative power had been fused, with the executive being part of the parliamentary structure. But in any case, in practice, even had there been a constitutional separation between legislative and executive power, this would have had no effect because of the position of the Party. With the Communist Party controlling every level of society, power concentration, not balance, was the engine behind institutional functioning at that time. This began to be seriously challenged only after Mikhail Gorbachev became head of the Party, and began the process of change which was ultimately to lead to the collapse of the system.
Three aspects of Gorbachev's changes are relevant to this issue. Two of these were introduced at the XIX Conference of the Party in mid‐1988, and the third in 1990. At the Conference, Gorbachev declared that the Party must withdraw from playing a direct administrative role in Soviet life. While he assumed that it would continue to be a major player in the course of Soviet politics, the Party's role was no longer to involve direct administrative control of Soviet institutions. This decision was formalized with the removal of Article 6, which enshrined the Party's leading role in Soviet society, in March 1990. The second change was his announcement of a new parliamentary structure for the Soviet Union, consisting of a Congress of People's Deputies and a standing Supreme Soviet. These new legislative bodies, although a classic (p.272) compromise,5 did create a new legislative structure which was meant to be more closely linked to the populace at large than the former Soviet organs had been, and, in the light of the stated withdrawal of the Party from a direct administrative role, were meant to emerge as the leading parliamentary forum of the new political structure. Following the 1989 elections to the Congress, these bodies did become a very important arena of political life within the USSR. The third measure was introduced by Gorbachev in 1990 when he was worried about the weakening of the capacity of the centre to control events at lower levels. This was the establishment of an executive presidency which, although initially to be filled by election at the Congress, was to have very extensive powers. Had the Soviet system developed constitutionally along the lines implicit in Gorbachev's proposal, a formal separation of powers would have been the result.
Institutional change also came to the Russian Republic. Initially Russian leaders simply replicated the situation at the Soviet level. The existing parliamentary structure was replaced by a directly elected Congress of People's Deputies (without places set aside for the Party and other public organizations), which in turn was to form a smaller Supreme Soviet. Elections were held to the Congress in March 1990, and two months later Boris Yeltsin was elected to the post of chairman of the Supreme Soviet (effective head of state). On 24 May 1991 the position of president was formally established, and on 12 June Yeltsin was popularly elected to that post. These constitutional changes were meant both to bolster the Russian leadership in its continuing struggle with the Soviet centre and to make the constitutional structure consistent with the Declaration of State Sovereignty of the RSFSR (12 June 1990). But these changes were seen as a strictly interim measure; on 16 June 1990 the Russian Congress of People's Deputies established a Constitutional Commission whose task was to prepare a new constitution reflecting Russia's newly proclaimed sovereign status.
This initial attempt at institutional engineering was meant to weaken the centralization of the Soviet regime whereby the Soviet authorities dominated the republics. It was assumed that the establishment of a new institutional structure that was not based on the Party would enable both Soviet and Party control to be broken within Russia. The dominant idea was that the new democratic (p.273) governing system could easily emerge from the old one. As I. G. Shablinsky noted,6 after decades of complete contempt for parliamentarism, and one‐party control of the soviets, reformers thought it extremely important to promote the role of the parliament. It is important to stress that balancing powers between the legislative and executive bodies did not seem very significant at the time.7 But the outcome indicates that simply bringing these institutions ‘to life’ was insufficient to guarantee the balance of power between institutions.
The institutional changes made in Russia in 1990 and 1991 created an extremely contradictory power arrangement. The establishment of a popularly elected president as the head of the executive effectively grafted the presidency onto a parliamentary system without making any clear division between the responsibilities of the two institutions. While the Congress was referred to as the ‘supreme organ of state power’ and the president as ‘the supreme official and head of executive power’, with the implication that the former was the chief policy‐making body, by virtue of their direct election both had a popular mandate and Yeltsin's was more recent than that of the parliament. The distinction between the two institutions was further blurred by the Congress effectively passing much of its power on economic matters to the president in November 1991 (see below). Without clearly demarcated spheres of responsibility, with both the presidency and chairmanship of the Supreme Soviet occupied by people with growing personal and institutional ambitions (respectively Yeltsin and Ruslan Khasbulatov), and with the unity of the Russian elite coming under strain as a result of differences over (particularly economic) policy, conflict between the president and parliament became almost inevitable. Instead of emerging as either a presidential or parliamentary republic, the state began showing signs of both.
Conflicts between president and parliament emerged even before the USSR had collapsed. In the last months of 1991, the Supreme Soviet criticized government policies in a number of areas, opposed Yeltsin's action in appointing regional heads of administration in place of holding local elections, and reversed a number of Yeltsin's decrees, including those relating to the imposition of a state of emergency in Chechnya‐Ingushetiya and the merger of the security ministries. In November, however, the parliament abrogated (p.274) some of its power by granting to Yeltsin extraordinary powers for one year to introduce decrees designed to carry out economic reform measures without reference to parliament. Over the following year, relations between president and parliament deteriorated further. As economic reform bit home and popular living standards fell, sections within the parliament became increasingly critical of the president and his policies. But while Yeltsin refused to fortify ties with the deputies (thereby building upon the nucleus of support for him that existed in parliament) and while he continued to support economic change, relations deteriorated. The conflict between president and parliament, although characterized by a high level of rhetorical threat, was actually one in which both sides sought in practice to play by the newly emerging rules of the political game. As a result, the convocations of the Congress of People's Deputies, which had the power to change the Constitution and thereby fundamentally to affect the power of the president, became the site of major battles in this conflict.8 But they were also the site of attempted compromises between the two parties as both institutions engaged in political bartering for power. At the Sixth Congress in April 1992, Yeltsin removed from ministerial posts two of his key supporters who were most associated with the economic reform policies to which the parliament was objecting (Burbulis and Shakhrai). Nevertheless, this apparent attempt at compromise failed to satisfy the parliament,9 which maintained its criticism of the president and his policies. At the Seventh Congress in December 1992, at which Yeltsin's extraordinary powers came up for renewal, a compromise proposal was worked out between Yeltsin and Khasbulatov. Yeltsin's extraordinary powers would be continued for a year, in return for which the powers of the Supreme Soviet would be expanded by allowing it to confirm presidential nominees for prime minister and four key ministries (foreign, defence, security, and interior). But instead, Congress refused to accept this compromise, rejected Yeltsin's choice of Yegor Gaidar as prime minister, sought to bring the government under parliamentary, rather than presidential, control, and tried to insulate itself against dismissal by linking any attempt to dissolve the parliament with the automatic disappearance of the president's authority. This crisis was resolved, temporarily, through (p.275) an agreement brokered by the head of the Constitutional Court, Valery Zorkin. Among other things this involved a popular referendum on a new constitution, the freezing of the pre‐December president–parliament relationship, and no appointment of new Constitutional Court judges.
The compromise brokered by Zorkin did not last long and was formally rejected at the Eighth Congress in March 1993. At this meeting, the idea of a referendum was rejected, Yeltsin was stripped of many of the emergency powers he had been granted in November 1991 (including the right to issue decrees), and the government was given the right to submit legislation directly to parliament, independent of the president. These measures were not only a breach of the earlier agreement, but a significant diminution of presidential powers. Yeltsin now publicly declared the imposition of ‘special rule’ (an action which, had it been carried through, would have been unconstitutional) and that a referendum would be held in April as planned. This announcement persuaded the leadership of the Congress to go along with the referendum (while significantly changing the questions),10 but it also led the Congress as a whole to introduce a series of measures further reducing presidential powers. In any event, when the referendum went ahead on 25 April, the result seemed to be a victory for Yeltsin: 58.7 per cent declared they had confidence in the president, 53 per cent approved of his economic policies, 49.5 per cent wanted early elections to the presidency, and 67.2 per cent wanted early parliamentary elections. Yeltsin now pushed on with the question of constitutional reform.
The issue of a new constitution had been in the air since the establishment of a Constitutional Commission by the First Congress of People's Deputies in June 1990. This body had produced a number of drafts for consideration, but none of them gained the support of major political actors. In addition, Yeltsin had set up his own commission, which in April 1993 produced a draft which, had it been introduced, would have inaugurated an openly presidential system. Any hope of reaching a compromise vanished when, in May 1993, the Constitutional Commission approved a draft constitution which removed the president as head of the executive branch and as commander‐in‐chief of the military. It also proposed granting the Supreme Soviet the right to cancel ministerial decrees. In my (p.276) opinion, it was this proposal (which would have completely obliterated the principle of separation of powers) that finally pushed the limits of the institutional competition between the president and parliament and eventually led to Yeltsin's dismissal of the Supreme Soviet by Decree 1400 (21 September 1993). In an attempt to garner Federation‐wide support for his draft, in June 1993 President Yeltsin called a ten‐day Constitutional Assembly to discuss and amend his draft. Conference participants included representatives of the local soviets, party leaders, and other representatives of prominent interest groups and politicians. Drafts were prepared by a range of bodies, including the parliament. Unable to reach a compromise, the Assembly failed to commit to a new draft by the end of the ten‐day period and a smaller Conciliation Committee was established to hammer out the remaining details. Finally, on 12 July 1993, the Assembly was reconvened and a draft constitution based on both presidential and parliamentary drafts was approved. However this was overrun by Yeltsin's dismissal of the parliament.
Yeltsin justified the Decree 1400 by accusing the parliament of contributing to economic decay, using legislation as a means to gain power, and stalling the constitutional reform process. He also announced that parliamentary elections and a simultaneous constitutional referendum would be held on 11–12 December 1993.11 Yeltsin's decree created a frightening stand‐off, in which parliament continued to operate despite the decree until the president sent police to prohibit people from entering the White House. When parliamentary sympathizers turned to violence, the police and the army responded with force on 3–4 October and ended the conflict. With parliament out of the way and girded by strong public support, the president turned to his constitution‐drafting team to work out a draft which would be presented at the December referendum. Thus, the final text of the Constitution and its separation of powers scheme was not the result of debate and compromise but rather a military trophy of the president.
Predictably, the only draft that had any influence on the draft Constitution presented to the referendum in December 1993 was that of the president, which not surprisingly formulated a regime in which the president and executive branch were dominant. The president's draft Constitution differed from the July Constitutional Assembly draft in a number of essential articles, (p.277) particularly those dealing with the principle of separation of powers. For example, the presidential draft gave the president the power to define, in conformity with the Constitution and the federal laws, the primary direction of domestic and foreign policy and to determine the order of formation of the upper house of the Federal Assembly, the Federation Council. The history of the latter article is extremely interesting because it was silently and anonymously inserted after the debate on the draft was completed, sometime between 28 October and 4 November (the date that the Referendum Draft was published), and significantly changed the balance of powers in the regime. Article 96 of the Constitution now states that the means of formation of the Federation Council and the means of elections of deputies to the State Duma are established by federal law. Deputy Viktor Sheinis, an active participant in the constitutional process who witnessed the creation of both the initial draft Constitution and the July 1993 Conference draft, asserts that the issue of direct popular elections of Federation Council deputies had never arisen during public debates. Yet, in the final draft, the word ‘election’ was replaced by ‘formation’. This change was made at the beginning of November—after the referendum campaign had already begun and after a number of meetings between the president and regional leaders as well as with members of the Constitutional Assembly.12 When the voting in the referendum was tallied, it was announced that 58.43 per cent had supported the Constitution, on a turnout of 54.8 per cent.13 This meant that, in effect, only 30.7 per cent of the total electorate voted for the Constitution, and it was rejected in seventeen republics and regions of the Federation. Thus although the Constitution was declared to be adopted, its narrow margin was hardly a ringing endorsement.
Evaluating the 1993 Russian Constitution
President and Parliament
What type of regime did this process create in Russia? Although some observers have come to the conclusion, using somewhat (p.278) paradoxical methodology, that Russia is a parliamentary republic,14 most more or less agree with Stephen Holmes, who considers Russia to be a super‐presidential state.15 But perhaps a more important question to explore is: how has this regime type affected Russian governance? V. A. Chetvernin concluded that the system of separation of powers established by the Russian Constitution cannot properly guarantee rights to freedom, security, and property. He asserts that this is the result of granting the president extensive legislative powers and because the mechanism of checks and balances between the legislative and executive powers works in favour of the latter.16
The constitution‐drafting process offers hints about what kind of regime the framers were hoping to create. The 1958 Constitution of the French Republic is sure to have been used as a model while working out the Russian constitutional scheme. But contrary to the French model, Russia's weak parliament has insufficient constitutional means to moderate the actions of the president—clearly a direct consequence of the president's ‘victory’ in the constitutional power struggle.17 Thus, as A. V. Butakov asserts, the constitutional status of the president of the Russian Federation relative to that of the legislative power considerably exceeds the corresponding status of the French president. Even in a classical presidential republic, such as the USA, the president is not granted the right to issue decrees, dismiss the Congress, or unilaterally hold referenda. In a mixed republic such as France, there is a clear logic of separation and balancing of powers. Therefore, even the French president's prerogatives are not as broad as those of the Russian president. Butakov's argument is that the Russian president's constitutional status in relation to the legislature represents the amalgamation of the American and the French separation of powers models. But in fact, the Russian president's (p.279) powers exceed those of both models, thus ensuring the Russian president's dominant position vis‐à‐vis the Federal Assembly.18
According to the 1993 Russian Constitution, the president of Russia is head of state, responsible for guaranteeing constitutional rights and freedoms and defining the primary direction of internal and foreign policies. Moreover, the president coordinates the functioning of and interaction between state institutions (Art. 80 of the Constitution). Among his powers the president has the right to legislative initiative, to veto laws adopted by the Federal Assembly, to dismiss the State Duma under certain conditions, to announce elections to the Duma, and to issue decrees and directives as long as they comply with the Constitution and federal law.
In addition to its legislative activity, the Federal Assembly has the following functions: (a) budgeting and financing, (b) participation in the formation of government and other state institutions, and (c) general monitoring and oversight (chapter 5 of the Constitution). The parliament performs its monitoring function through various institutions of the chambers (such as the commission for investigating the events of October 1993), special deputies' question and answer sessions, and institutions, such as the Chamber of Accounts, which is responsible for monitoring the implementation of the federal budget.19
The Russian Constitution does not spell out how the two chambers of the Assembly are to be coordinated. There are no structures or committees to manage the operation of the Duma and Federation Council and there is no parliamentary president or high council to preside over the parliament as a whole. Despite the Federal Assembly being a ‘state body’, and thereby needing to have some kind of ‘organizational unity’, the only common denominator between the two chambers of parliament is their capacity to pass laws. Although they work together to this end, the two chambers of the Russian parliament do not consider themselves to be a single institution.
The formation of the two chambers occurs differently. Members of the Duma are elected to four‐year terms directly by the people (Arts. 96 and 97 of the Constitution). The mechanism for forming the Federation Council is more complicated: the members of the (p.280) upper house must hold simultaneously a position within a local governing body in the Russian Federation. Art. 95 reads: ‘Two representatives from each entity of the Russian Federation enter into the Federation Council: one each from the representative and the executive branches of state power.’ Thus, State Duma deputies' mandates are confined to four years, and can be further shortened if the president disbands the lower house earlier in accord with Articles 111 and 117 of the Constitution. In contrast, the mandates of Federation Council members are not specified in the Constitution and must be determined by the representative institutions of the various subjects of the Russian Federation. Since the president cannot disband the Federation Council and the mandate of the Council members depends on their mandate from the regions (which have their own election procedures), any change in the composition of the upper house occurs gradually and independently of Duma elections.20 In the end, the Russian Constitution even envisages different sets of prerogatives for each of the chambers of the Federal Parliament (Arts. 102 and 103 of the Russian Constitution), and both chambers are governed by a separate set of standing orders.
Before the 1992 Federation Treaty was signed and incorporated into the 1993 Russian Constitution (with minor changes), the Russian Federation was built according to a national principle. The subjects of the Federation were simply the national republics, autonomous regions, and autonomous okrug. The Treaty has compounded the national principle with a territorial one, and as a result the Russian Federation comprises 21 republics (despite the fact that the Chechen government does not recognize its inclusion as a republic of the Federation), 6 krai, 49 regions, 2 cities with federal importance, 1 autonomous region, and 10 autonomous okrug. The influence of all these subjects of the Russian Federation on the relationship between the executive and legislative powers is to be exercised principally through the Federation Council. The formation of the Council was one of the decisions that was postponed until after the Constitution was adopted by referendum. As mentioned above, the ambiguity over the formation of the Council was due to the secret change of Article 96 prior to the constitutional referendum. The Federation Council consists of, ex officio, the leaders of the executive and representative (legislative) branches of the subjects of the Federation. Thus, the Council represents the (p.281) link between federal and regional governments. Instead of serving in a strictly legislative capacity, in principle it should act as a balance between the legislative focus of the Federal Assembly and the executive, and it is also responsible for the synchronization of federal and regional interests. It should therefore be an important stabilizing factor in the Federation.
Since its creation in 1993, the Federation Council has evolved politically. Initially, the head executives of the subjects of the federation were appointed directly by the president, but now they are elected directly by the citizens (only two republics are exceptions, Dagestan and Karachaevo‐Cerkezia). This has had a clear effect on the separation of powers structure; instead of a Council of presidential appointees within the parliament, the Council has moved closer to becoming a truly representative body. Many Council members have become influential politicians in their own right, such as Yuri Luzhkov, the mayor of Moscow, or Alexander Lebed, the governor of the Krasnoyarsk krai. But, although it influences important decisions in Russia, the Council has been excluded at crucial moments. The civil war in Chechnya offers a vivid example of this. Although the Council must approve all major decisions concerning state security (declaration of a war by the president, the use of Federation military forces outside its borders, and declarations of martial law and state of emergency), the Council was completely excluded from decision‐making on Chechnya; the intervention of Russian forces in Chechnya was not sanctioned by the Federation Council.21 This serves not only to indicate the shortcomings of the Constitution's wording, but more importantly the stunning accountability deficit of Russia's elected representatives. While the elected Federation Council is left out of the decision‐making process at crucial moments, other unelected bodies, in this case the Security Council, make important decisions while neither the legislature nor the president suffers from these decisions in subsequent elections. But it also shows the way in which the president is willing to tailor his actions in order to get around the Constitution; by refusing to declare a state of emergency in Chechnya, he was able to avoid triggering the constitutional need for Federation Council approval.
The Constitution also seeks to provide a means for the removal of the president, and this directly involves the parliament. Under certain circumstances (see below), the president has the power to dissolve the State Duma. But the parliament also has the power, indeed responsibility, to remove the president if that person is guilty (p.282) of treason or a ‘grave crime’ (undefined). If one‐third of the members of the State Duma file a charge that the president is guilty of treason or a grave crime, the motion is adopted by two‐thirds of the all Duma members, the Supreme Court confirms that there are elements of a crime in the president's actions, and the Constitutional Court affirms that the established procedure for filing such a charge has been observed, the Federation Council may, in a two‐thirds majority vote of all members, remove the president from office. Such an impeachment procedure would be difficult to achieve, especially given that half of the members of the Federation Council hold executive positions similar to that of the president, but it is not inconsistent with impeachment procedures in some other presidential systems. However its difficulty is reflected in the fact that although a number of attempts have been made to begin impeachment proceedings—principally by the communists—none has got off the ground.
The outcome of the restructuring of the legislative branch has reflected the president's desire to weaken parliament. Lack of coordination between the chambers allows the president to pit one chamber against the other when needed, while loose wording of the powers of the legislature allows the president to ignore its prerogatives to influence important decisions, as was the case with the war in Chechnya. In other words: separating power within the parliament itself precludes the possibility of unification between the two chambers into a single political organ. The desire to weaken the parliament is also underscored by the logic of the political opposition in 1993. The upper chamber, which is a proponent of the interests of the various units of the federation, could have become an important balancing power against the vast prerogatives with which the president has been endowed. But under the existing Constitution, it cannot perform this role. Similarly the parliament's capacity to remove an errant president is difficult to put into practice.
President and Government
One of the most important factors in the relationship between president and parliament is the status of the government. This was a critical element in the conflict prior to 1993, and it has remained a point of contention under the new constitutional regime. Indeed, for every society undergoing the transition from an authoritarian to a democratic political regime, the institutionalization of the relationship between the representative and executive branches of (p.283) power is very important. The incorrect resolution of their relationship may lead to a constant competition between them, and, on such a basis, spur antagonism between the parliament and executive power, as occurred in Russia prior to 1993.22 Thus the crucial question must be answered by constitution framers: is the government responsible to the parliament or the president? In Russia according to one observer, conflicting constitutional articles make this question difficult to answer. Article 83 of the Russian Constitution declares that the head of the government is appointed by the president with the consent of the State Duma and the government may be dismissed by a decision of the president. But Professor I. M. Entin considers the government to be under parliamentary control and politically responsible to it for its actions.23 This thesis rests on the provision that the Duma must approve the prime ministerial candidate. However it is clear that the Duma's approval of the candidate for prime minister is not a necessary condition for forming the government. If the president presents the candidate for prime minister to parliament and the Duma rejects this candidate three times, the president then appoints the rejected candidate as prime minister, dismisses the Duma, and calls pre‐term elections (Art. 111.4 of the Constitution). Moreover, the president is not simply ‘able’ to dismiss the Duma in this case but ‘must’ dismiss it. Imagine this scenario: the newly elected president proposes an obviously unsuitable candidate for the post of prime minister. After this candidate is rejected three times, the president dismisses the Duma. If, after elections, the constituency selects a Duma almost identical to the previous parliament, and the new Duma twice issues a vote of no confidence in the government within three months, then the president (according to Art. 117.3 of the Constitution) is compelled either to dismiss the government or to dissolve the Duma once again. However, the president cannot dismiss the Duma according to Article 117 for one year following its election (Art. 109.3 of the Constitution). But if the Constitutional Court were petitioned to rule on these contradictory articles, and decided on the supremacy of Article 117.3, then theoretically, the president could (p.284) govern without the legislative branch for up to three and a half years.
This issue of the approval of the prime ministerial nominee has been the major point of contention between the parliament and president since 1993, even given the strength of anti‐Yeltsin sentiment in the Dumas elected in both 1993 and 1996. In part this is because of the way in which the president's economic reform agenda was significantly moderated after the December 1993 elections and his governments have, over time, become even less radical in their composition than that of early 1992. Perhaps the most striking case of conflict occurred in 1998, when Yeltsin sacked his prime minister Viktor Chernomyrdin and, after some casting around, presented the Duma with the nomination of Sergei Kirienko. A little‐known technocrat with no political base, Kirienko was not a popular choice. He was rejected twice by the Duma before it finally approved his nomination, more in fear of the threat of election than enthusiasm for his candidacy. However with the outbreak of the Russian financial crisis in late summer, Yeltsin sacked Kirienko and nominated former Prime Minister Chernomyrdin. However the Duma twice rejected Chernomyrdin's nomination, and this time, instead of presenting his nominee a third time and thereby forcing the issue, Yeltsin nominated a compromise candidate, Yevgeny Primakov. What this episode showed is that although the power in appointment is weighted in favour of the president, if the parliament holds its nerve it can prevent an appointment with which it disagrees.
Relations between the president and the government have frequently been characterized by Russian analysts as ‘strong president—weak government’. The president can dismiss the prime minister, take decisions on the resignation of the government, appoint and dismiss the deputy prime ministers and federal ministers, preside at the sessions of the government (though the president is not the head of the government formally), and can repeal government decrees and regulations if they contradict the Constitution, federal law, or presidential decrees. But at the same time, it is necessary to take into consideration that, according to Article 114 of the Constitution, it is the government that implements financial, credit, and monetary policy, as well as a uniform state policy in the field of culture, science, education, health services, social security, and ecology. Consequently, the government in Russia is not necessarily so weak.
However the government's responsibility to draft the state budget, which can cause conflict with the president, can also produce problems in the relationship with the parliament. Article 114 (p.285) stipulates that the government submits the budget to the Duma, which in turn votes on it after debate and review. After the Duma votes on the budget law, it must be sent to the Federation Council for approval (Art. 106 of the Constitution). Similarly, federal taxes must also be approved by both the Duma and the Federation Council. Thus, every year the approval of the budget invites contentious opposition between the government and parliament. Institutional competition is only aggravated by party competition; parliament has been dominated by the left‐wing and populist parties, which predictably block the passage of a budget drafted by a liberal government. In the case of a very strong polarization in the executive and legislative branches of power, the likelihood of which has been increased by the activist role Yeltsin has generally sought to play, the government is severely constrained in its capacity to adopt a realistic budget. It cannot deal with the everyday problems because it has no political support from either of the two chambers of parliament. Thus, in order to adopt a realistic budget, an important informal practice has been instituted, and has gained quasi‐constitutional importance: the president routinely appoints a representative from an influential political faction in the Duma to the post of minister of finance. It is thus clear that the government sits between president and parliament and the balance here remains fluid, even within the position of basic presidential primacy.
President and Constitutional Court
The fourth component of this power balance at the apex of the Russian state structure is the Constitutional Court. There had been no constitutional court during the Soviet period; the Court for the Russian Republic was established in October 1991. Despite fears among many that the new Court would be simply a bystander with no role to play, it was quite an influential institution prior to its closure at the time of the 1993 crisis. Among the tricky issues that came before it were the challenge to Yeltsin's banning of the CPSU and the confiscation of its property, Yeltsin's attempt to merge the security agencies in late 1991, and the status of the March 1992 Tatarstan referendum. But its most important role was played out through its chairman Valery Zorkin. With both parliament and president trying to play within the accepted rules of political life during their 1992–3 conflict (at least until September 1993), the Constitutional Court was called in on a number of occasions to adjudicate between the parties. More importantly, as noted above, Zorkin played an active role in brokering an agreement (p.286) between Yeltsin and his opponents at the end of 1992. However in playing a high profile role, and often seeming to favour the parliamentary side in the dispute, Zorkin incurred the wrath of the president, and when the Court met and declared Yeltsin's decree suspending the Constitution unconstitutional, Yeltsin suspended the Court.
The 1993 Constitution allocates to the president a number of important powers in relation to the judiciary. The president suggests candidates for the posts of judges of the Constitutional Court, the Supreme Court, and the Superior Arbitration Court for confirmation by the Federation Council. Single‐handedly, the president appoints judges to all other district and federal courts. Article 125.2 of the Constitution allows the president, one‐fifth of the members of the Federation Council or deputies of the State Duma, the government, the Supreme Court and Supreme Arbitration Court, and local legislatures and executives to petition the Constitutional Court to rule on the constitutionality of federal laws, normative acts of the president, the Federation Council, State Duma, and the government; republican constitutions, local charters, as well as laws and other normative acts; agreements between government branches and between the federal and local governments; and international agreements of the Russian Federation that have not entered into force. Individual citizens may also petition the court in cases involving the constitutionality of decisions regarding constitutionally guaranteed rights and freedoms (Art. 125.4 of the Constitution). Finally, if the president is accused of treason or any other crime which calls for impeachment, the Court possesses the important role of ruling on the constitutionality of procedural compliance in the case (Art. 125.7).
The Russian Constitutional Court has been instrumental not only in interpreting the confusing and contradictory labyrinth of constitutional principles, but also in clarifying the fluctuating goals of the state as well as the constant power struggles between government branches (see Art. 125.3 of the Constitution). In fact, through several of its decisions, the Constitutional Court has further strengthened presidential powers. One such case (Decision of the Constitutional Court of 31 July 1995) concerned verifying the constitutionality of presidential decrees restoring constitutional legality in the territory of the Chechen Republic. In its ruling, the Constitutional Court agreed that the Constitution allows the president additional covert powers.24 In another Court decision (p.287) (22 April 1996), regarding the interpretation of Article 107 of the Constitution, the Court upheld the president's attempt to return federal laws to the Chambers of the Federal Assembly for amendment and stated that such action was within the presidential veto powers contained in the Constitution. In the opinion of the Constitutional Court, if the procedure for adopting federal laws is transgressed in the legislative process, the president has the right to return a law to the corresponding chamber, pointing out the specific breaches of procedure. In this case, the law cannot be considered ‘adopted’ in the sense of Article 107.1 of the Constitution, and not returning it for reconsideration would not be a violation of Article 107.3 of the Constitution.25
The Constitutional Court has also been very active in one area of the Constitution which has been significant in all of the post‐communist countries, that of socio‐economic rights. At the very beginning of the constitution‐drafting process, the Constitutional Commission was determined to include a list of social rights, believing that unless the Constitution contained such rights its adoption would be delayed. It is the responsibility of the Court to ensure that all citizens' constitutional rights are observed throughout the country, and since its re‐establishment in February 1995,26 the Court has handled more disputes concerning economic and social rights than civil or political rights. This seems consistent with the experience of other post‐communist states, such as Hungary, Poland, and Belarus.
Social rights form the majority of all constitutional rights. They include social security in old age, in case of sickness, disability, loss of a breadwinner, child‐rearing, and other cases established by law (Art. 39.1), the right to a guaranteed minimum level of remuneration for labour (Art. 7.2), the right to protection against unemployment (Art. 37.3), the right to state support for maternity, childhood, and family (Art. 7.2), the right of needy citizens to receive free or affordable housing (Art. 40.3), and the right to health protection and medical care—including free medical care in state and municipal health institutions (Art. 41). Russian doctrine considers that social rights should uphold the humanitarian values of equality, social justice, and humanism. Consequently, social rights in Russia have not been limited to meeting the needs of the elderly or disabled citizens or those otherwise in need, but have been a (p.288) means of restitution, of righting past wrongs, as well. This is most clearly reflected in the way in which these rights have been used to extend aid and protection to citizens who have suffered from political repression, were victims of the 1957 nuclear plant explosion, participated in rescue missions after the Chernobyl nuclear plant explosion, as well as to ethnic groups that suffered from Stalin's repression. For example, the Constitutional Court, reviewing the constitutionality of the law ‘On Rehabilitation of Victims of Political Repression’ of 1991, found that its goals are to rehabilitate victims of political repression, and decided to enforce payments for (within current financial constraints) compensation of property and moral damages.
This expansive understanding of socio‐economic rights in Russia originates from the ideals of socialism. Currently, however, the state is dedicated to building a free market economy. It is not clear that, with the shrinkage of the state that many leading decision makers see as essential for the growth of a market economy, the state will be able to sustain such an expansive view. The more cases that are brought successfully to the Court based upon the results of state negligence or direct state action, the less able the state will be to meet its obligations under the law. This tension is one which will need to be worked out quickly.
The introduction of the president's Constitution in which the president dominates all aspects of government did not resolve the power struggle between competing institutions. In fact the existing inequality between state institutions has only heightened the animosity between them, leading some members of the parliament at times to call for the restoration of a parliamentary political system. It has also led to attempts to reform the Constitution. On 21 June 1995, the State Duma approved three draft laws with a qualified majority vote to amend the Federal Constitution. The first draft law (to amend Arts. 83 and 103 of the Constitution) expanded the number of cabinet members and their appointments that were to be approved by the State Duma. Parliamentarians hoped to gain the right to approve the president's appointment of the deputy heads of government, the minister of foreign affairs, defence, interior, and the directors of the foreign investigation and the federal investigation services. The second bill envisaged changing Articles 103 and 117 of the Constitution. This draft (p.289) concerned the individual members of the Russian cabinet, who could be held personally responsible for their decisions and actions by allowing the Duma to recall cabinet members with a qualified majority vote. At the same time, the procedure of recalling ministers would restrict the president from freely disbanding parliament. The third draft law introduced changes in Articles 101, 102 and 103 of the Constitution, which would have organized committees for parliamentary supervision in both chambers of the federal parliament, primarily aimed at investigating the work of the federal institutions of the executive. But these amendments were ultimately dismissed when the Federation Council, fearing a possible strengthening of the powers of the lower house of parliament, revoked all three draft amendments.
Following the period of severe financial crisis in 1998, the blatant institutional power imbalance was blamed for the country's troubles, and the focus returned to amending the Constitution. Somewhat surprisingly, the Federation Council was the initiator of the proposed constitutional changes, targeting the very same articles of the Constitution which the Duma's amendment project addressed, though the power was to be shifted from the Duma to the Council. According to these draft amendments, the appointment of the prime minister would be approved by Federation Council, on the basis of the argument that the regional governors are responsible for securing and disbursing the state budget. The Federation Council also argued that the financial crisis was a direct result of the Duma's ultimate approval of the president's weak candidate, Sergei Kirienko. Prior to his appointment, the president proposed the same candidate three times to the Duma even though it was obvious that he lacked sufficient political support. The fact that the Duma finally did approve Kirienko, the Council argued, reflected the Assembly's fear of being dissolved by presidential decree. Since the president cannot disband the Federation Council, the upper house reasoned it should exercise the important check on the president and therefore approve prime minister candidates. Unfortunately, though perhaps not surprisingly, these draft amendments were not approved by the State Duma.
The final, and most surprising, initiative for amending the Constitution came from the president himself, after failing to gain Duma approval of his candidate for prime minister. Although successive efforts to amend the separation of power structure have failed, after Sergei Kirienko's dismissal and the president's inability to gain the Duma's support for Viktor Chernomyrdin a political deal was cut between the president and the parliament. The (p.290) political agreement, announced by the president on 7 September 1998 and which will continue to be in effect until the end of this Duma's term, outlines the procedure by which the Duma and the president will begin monthly consultations on amending the Constitution. The agreement stipulates that these amendments must envisage, in particular, broadening the powers and controlling functions of both chambers of the federal parliament, broadening the powers of the government, and introducing consultations between the executive and legislature. The document also addresses the problem of adopting a federal law on the constitutional assembly. In the month following the agreement, the changes proposed included additions to the federal constitutional law ‘On the Russian Federation Government’ to direct more power to both chambers of parliament in terms of forming the cabinet and checking the work of the government, while simultaneously extending the power of the prime minister. Although the president will still appoint and dismiss the prime minister, prior consultations with parliament have been envisaged.
The 1993 Russian Constitution has created a striking power imbalance between state institutions in which none of the other government branches can check the actions of the president. However, the extensive powers and responsibilities concentrated in the hands of the president evidently exceeded the strength and ability of that office. To counter this problem, President Yeltsin has built up an enormous and largely unaccountable presidential administration. Unelected bodies brought into the decision‐making process, such as the Security Council, have been responsible for some of the most damaging political decisions, such as undertaking military action in Chechnya. Heavily reliant on the dynamism and health of one man, continually confronted by the hostility of the frustrated parliament, submerged by the weight of the problems facing the country, and lacking any powerful partners in rudimentary civil society, the super‐presidential system has been unable to foster the development of a stable and vigorous democracy. In the initial years after the adoption of the 1993 Constitution, it was possible to argue that the Russian super‐presidential state, however imbalanced and ineffective, was still better than the pre‐1993 constitutional chaos. It was possible to argue that President Yeltsin, despite his obvious shortcomings, was at heart a true democrat reluctant to (p.291) misuse his enormous powers. However, in the autumn of 1998, it became clear that the era of Yeltsin was coming to an end and the system created in 1993 presents a major threat to democracy‐building in Russia. This system has been virtually helpless in coping with the severe financial crisis that brought Russia to the brink of economic bankruptcy. Yeltsin's poor health has prevented him from conducting the daily business of running the country and forced a de facto delegation of his power to various other bodies.27 Moreover, the prospect that the vast powers of the president may be misused by a less democratically inclined successor to Yeltsin became realistic and frightening. President Yeltsin recognized the gravity of the situation and promised to elaborate some major constitutional changes. The scope and speed of these changes is difficult to predict. But one important conclusion of this chapter is certainly justified: a constitution creating a striking power imbalance between the major branches of government is detrimental to democracy. Had President Yeltsin been more generous in constitutionally delegating power to parliament after his ‘victory’ in the violent contest of September 1993, efforts to build a workable democracy in Russia might have been realized to a greater extent.
The resultant power imbalance is the main reason that the state has grown weak, since the executive has become excessively overburdened and the state ineffective.
Such construction of the Constitution envisages that a president with enormous powers invested in him should work effectively and, without doubt, be committed to liberal values. This idea, incarnated in the Constitution, turned out to be rather risky. A president with poor health has created quite a different situation, with those close to him becoming a hub of decision‐making, and other branches of power cannot balance this potentially illegal centre of power. It is good, of course, if those surrounding an unhealthy president are devoted to the idea of observing the Constitution. But what if something quite different happens and those surrounding the not‐quite‐capable president start to ignore constitutional provisions?
The Constitution must include mechanisms that envisage the most incredible and sometimes unexpected situations, yet it is possible that the Russian Constitution does not envisage everything. Article 92 (part 2) stipulates that the president of the Russian Federation shall cease to exercise his powers before the end of his term in the event of his persistent inability, for health reasons, to (p.292) carry out the powers invested in him, or impeachment. Due to health reasons, President Yeltsin announced his voluntary resignation on the last day of the twentieth century. It was a courageous decision testifying to the fact that Boris Yeltsin understood his responsibilities to the people. But it could be envisaged that another president would not act similarly. What then is the procedure for terminating a president's authority in the event of his persistent inability to carry out the powers invested in him?
The president of Russia, Prime Minister Vladimir Putin, prob‐ably considers that the main goal is to strengthen state power. It is difficult to say whether this main political idea of acting president is based on his recognition and acknowledgement of the imbalance between the branches of power, as thus far he has not made any such statements. But there is still the fact that all his public statements address the necessity of strengthening state power. And even military actions in Chechnya are explained in terms of overcoming the weakness of state bodies and restoring their powers throughout the whole territory of the Russian Federation.
Some statements of Vladimir Putin on the strengthening of state regulation of economic processes have also attracted attention. Behind such political statements one usually finds a hidden desire to return to a centralized planned economy. Putin emphasises the fact that, in his belief, strengthening the state's position in the economy simply means creating stable conditions for the effective functioning of market. Addressing whether it is mistaken to say that the state has unreasonably retired from economy, Putin said that the state must not interfere (as it did previously) in the economy through the restoration of direct planning. Rather, it must adopt laws and rules concerning the functioning of the market that are simple and intelligible enough for everybody to understand. Strengthening of the state means that the state must ensure observance of established legal provisions. The state must be careful to ensure that these rules are applied equally to everybody, and the rules must be observed by all participants of the market.
Finally, one other statement by the new political leader of Russia deserves special attention: that just courts must be a central link in the mechanism for securing democracy and ensuring conditions that will force Russia forward in the new millennium.
(1) Richard Rose and Doh Chull Shin, ‘Qualities of Incomplete Democracies: Russia, the Czech Republic, and Korea Compared’, Studies in Public Policy, 302 (1998), 5.
(2) See Jon Elster, ‘The Role of Institutional Interest in East European Constitution‐Making’, East European Constitutional Review, 5/1 (Winter 1996), 63–5.
(3) See Jan Zielonka, ‘New Institutions in the Old East Bloc’, Journal of Democracy, 5/2 (Apr. 1994), 88.
(4) The remark about the constitutional process in the formal legal sense is connected with the following fact: Russian scientific literature differentiates between the constitutional process in its broad and narrow sense. The constitutional process in the broader sense means the reaching of civil consent in society on the primary principles of the state structure. In the narrow sense it is actually working out and adopting the Constitution. See V. B. Pastuchov, ‘Formation of the Russian Statehood and Constitutional Process: Politological Aspects’, State and Law, 2 (1993).
(5) The compromise is reflected in the way that a certain number of seats were set aside for the Party and various public organizations and thereby shielded from running the electoral gauntlet, and that competitive elections were seen to be desirable but not mandatory.
(6) I. G. Shablinsky, ‘The Constitutional Reforms in Russia and the Principle of the Separation of Powers’, unpublished; author's abstract (Moscow: 1997), 22.
(7) Izvestija (25 Mar. 1991).
(9) Indeed, it was as much an attempt to insulate them from the parliament as it was a peace offering; both took up advisory positions in Yeltsin's administration.
(10) It also persuaded them to agree to early parliamentary and presidential elections, but this was rejected by the Congress as a whole, which also sought both to impeach Yeltsin and to remove Khasbulatov. Both moves failed.
(11) Dwight Semler, ‘The End of the First Russian Republic’, East European Constitutional Review, 2/3:4/1 (Fall 1993/Winter 1994), 109.
(12) Victor Sheinis, ‘Capitulation of Parliamentarism’, Nesavisstmaya Newspaper (25 Oct. 1995).
(13) However, it was later claimed that the turnout was actually below 50%. If so, the result would have been formally invalid. These claims have never been disproved, but nor have they been proved.
(14) B. Strashun, ‘Paradoxical as it may Seem the Draft of the Constitutional Commission Presupposes a “presidential republic” and the Draft Constitution Conference the “Parliamentary One” ’, Constitutional Conference, N 1 (Aug. 1995).
(15) Stephen Holmes, ‘Superpresidency and its Problems’, East European Constitutional Review, 4 (Fall 1993).
(16) V. A. Chetvernin, ‘Ideology of Rights of Man and Principles of Separation of Powers in the Constitution of the Russian Federation’, V. A. Chetvernin (ed.), in Collection of Articles on the Formation of the Constitutional State in the Post‐totalitarian Russia (Moscow: Institute of State and Law of the Russian Academy of Science, 1996), 24.
(17) N. N. Varlamova, ‘The Russian Constitution Experience of Three‐Dimensional Interpretation’, in Chetvernin (ed.), Collection of Articles, 41.
(18) A. S. Butakov, ‘The Russian System of Separation of Powers’, Jurisprudence, 1 (1997), 11.
(19) The membership and organizational structure of the Chamber of Accounts is determined by the federal legislators. The status of this institution is regulated by a federal law as of 11 Jan. 1995. Legislative Review of the Russian Federation, no. 3 (1995), art. 167.
(20) A notable exception of this was only the first joint session of both chambers of the Russian parliament, as it is stipulated by the concluding and transitory ordinances of the Russian Constitution.
(21) Nor was the State Duma involved in this episode.
(22) Edvard Ozhiganov, ‘The Institutionalisation of the Relationship between the Executive and Representative Branches of Power and the Political Regime in the Russian Federation’, in President–Government–Executive Power: The Russian Model (Moscow: Centre of Constitutional Researches of Moscow Public Fund, 1997), 41.
(24) Bulletin of the Constitutional Court of the Russian Federation, 5 (1995), 11.
(25) Bulletin of the Constitutional Court of the Russian Federation, 3 (1996), 10.
(26) Although legislation establishing the Court was adopted in mid‐1994 the final judge was not appointed, and therefore the Court could not begin work, until Feb. 1995.
(27) See John Thornhill, ‘Yeltsin Gives up Day‐to‐Day Government of Russia’, Financial Times (29 Oct. 1998).