FEDERALISM IN THE CONSTITUTIONAL DEBATES IN RUSSIA OF 1992-1993: A REVIEW
by Sergei A. Beliaev
The Federalist, 1994, Number 1
The major issue in constitutional discussions of the federal organization of Russia since the 1990s was the question of the separation of power and competences, primarily within the federal authorities between the President, the executive and the legislature. However, the centre of debates had moved by the end of 1993 to the opposition of federal authorities in Moscow, on the one hand, and the republican and regional bodies, on the other.
In 1991-1993 a new set of draft constitutions was prepared within the Russian parliament the Supreme Soviet. A group of politicians close to the President prepared a version of a new constitution which was published on 30 April 1993. This version became known as a "presidential" or "Yeltsin draft." The presidential draft constitution became part of a political plan aimed at changing the balance of power in favour of the presidential team and at legitimising its power. This chain of events included the referendum of April 1993, the convocation of a Constitutional Conference (Konstitutsionnoye Sovieshchanye) in June 1993, the removal of the vice-president and some ministers from their positions in August and September 1993, the dissolution of the parliament in September 1993, and the organization of the early election of a new parliament togheter with the referendum on the Constitution on 12 December 1993 which adopted a definitive final constitutional draft.
The constitutional debates on federalism are further analyzed below on the basis of comparison with the main drafts of the constitution: the constitution, adopted in 1978 and amended in the second half of the 80s and in the beginning of the 90s; the draft constitution of 1990 with some modifications in 1991-1993 prepared by the Constitutional Commission of the Congress of the People's Deputies (referred to here as the "Rumiantsev draft" after the executive secretary of the Commission); (1) the Yeltsin draft of the April 1993; (2) the draft of 15 July 1993, adopted as a result of the Constitutional Conference; (3) the current constitution, prepared in October and November 1993, by the reconvened two-chamber Constitutional Conference and adopted by the referendum of 12 December 1993. (4) The most controversial points of debate about federalism became the status of the President as a supreme federal institution, the competence of the parliament and of the government, the separation of powers, the balance betwee
n the federal institutions and federated components, as well as the position of the federal treaty. A comparative analysis of provisions of the main constitutional drafts gives an idea of the evolution of federalist debates in Russia and the dinamics of the struggle of political forces of the Russian Federation for their legitimisation.
General Points of Constitutional Discussions on Federalism in Russia.
The structure of the drafts includes the issues of constitutional federal order, relationships between the state and the individual, competences of the president, the legislative, the executive, the judiciary and other institutions. The drafts of 1992-1993 contain similarities and sometimes repeat each other.
The amended 1978 Constitution defined the Russian Federation-Russia as "a sovereign federal state created by peoples historically unified in this state" (Art.1). The basis of the constitutional order of Russia is defined as "democracy (narodovlasteye), federalism, a republican form of governance and the separation of powers" (Art.1). Article 2 provides that "all power in the Russian Federation belongs to the multinational people on the Russian Federation." Many provisions of the Constitution mention the role of the Soviets in society.
The Rumiantsev draft conceives of the Russian Federation as "a sovereign, democratic, federal and social state based on the rule of law (pravovoye)" (5) (Art.1). The Constitutional Conference draft of July 1993 defined the Russian Federation as "a sovereign, democratic, federal state based on the rule of law, with a republican form of government" (Art. 1). Article 1 of the draft adopted by the referendum of 12 December 1993, proclaims: "The Russian Federation-Russia is a democratic, federal state based on the rule of law, with a republican form of government." (6)
The amended 1978 Constitution contained in Article 70 the phrase that "the territory of the Russian Federation is integral and inalienable." This formulation disappeared in some drafts and reappeared in the draft of July 1993 (Art. 4), which defined the Russian Federation as "an integral and indivisible state." The version of July 1993 included such definitions "as an integral and indivisible state" and "the unity of the state" (Art.4).
The definition "integral and indivisible state" disappeared in the final draft of November 1993. However, Article 4 (1,2) underlines the extent of sovereignty of the Russian Federation and the predominance of the constitution and federal laws throughout its territory. The same Article 4 (2) states: "The Russian Federation guarantees the integrity (tselostnost) and inviolability (neprikosnovennost) of its territory."
Article 5 (3) mentions that the federal structure is based on "its state integrity." These provisions were understood as an insistence on the absence of the right to secede from the Russian Federation. The right to self-determination was nominally preserved in the final version of the Constitution (Art. 5, 3). However, President Yeltsin made a reservation in his speech in November 1993, declaring that the right to self-determination "excludes the right to secession from Russia."
It is remarkable that human and individual rights and freedoms are in no way a point of debate. The whole catalogue of human rights from international documents was included in the amended Constitution of 1978 (Art. 31-67) and in all the drafts under discussion.
Since the scope of provisions for human rights and fundamental freedoms was accepted by all political forces in the constitutional debates, the instruments of their practical implementation became a critical point. One such instrument is the Constitutional Court. The Constitutional Commission draft extended the right to complain and protest in the Constitutional Court to "physical and juridical persons" if they have exhausted "other juridical means of protection by law" (Art.100, 6, b). The Yeltsin draft of April 1993 expounded very briefly the competence of the Constitutional Court, limiting the objects of regulation and subjects of regulation and excluding from the latter individual persons (Art.121 and 122). On the contrary, the Constitutional Conference draft was very inclusive and clear. Article 125 contained the following provision: "The Constitutional Court of the Russian Federation upon individual requests shall verify the conformity to the Constitution of the practice of application of the law in th
e field of protection of constitutional rights and freedoms of an individual and citizen."
Again, the final draft constitution presented this clause in a very contradictory and vague form: "The Constitutional Court of the Russian Federation, on the basis of complaints regarding the violation of citizens' constitutional rights and freedoms and at the request of judges, will examine the constitutionality of the law that has been applied or is applicable in the specific case, in accordance with the procedure laid down by federal law "(Art. 125,4).
This means a practical abrogation of the right to individual recourse in cases of human rights violation which diminishes the competence of federal institutions in this field.
Status of the President as a Supreme Federal Institution.
As long ago as autumn 1992 the major point of constitutional debate had become the issue of the status of the President within the federal state and the separation of powers between the President, the parliament and the government and the institutions of the federal units.
The amended 1978 Constitution defined the President of the Russian Federation as "the supreme official personality and the head of the executive power in the Russian Federation" (Art.121). The Constitutional Commission's draft defined him as "the head of state and the supreme official personality in the Russian Federation" (Art. 92). The presidential draft of April 1993 pointed out that the President is the head of state and moreover "the guarantor of the constitution and of the rights and freedom of citizens" (Art.80).
Besides these provisions, it is held that "within the procedures established by the Constitution he adopts measures to protect the sovereignty of the Russian Federation and its independence and state integrity and ensure the coordinated functioning and interaction of all state organs" (Art.70). This provision gave grounds to the opponents of Yeltsin to conclude that the President is not only excluded from the system of three types of powers, but is placed above this system, which is "typical for authoritarian regimes."(7)
To establish a compromise, this provision was preserved in the Constitutional Conference draft, but supplemented by the following phrase using the restrictive role of the constitution and federal laws: "The President of the Russian Federation uses the powers vested in him by the Constitution of the Russian Federation and the federal laws to carry out the electoral political and economic programme "(Art. 80).
This formulation was modified in the final version as follows: "According to the constitutional and federal laws the President of the Russian Federation defines the main directions of the internal and external politics of the state" (Art. 80, p. 3).
Such a formulation was the result of a desire to find a broad constitutional framework for the activity of the President.
According to the final draft constitution approved by the referendum the President submits to the Federal Assembly a candidate for appointment to the post of President of the government and President of the central bank, the latter on the recommendation of the chairman of the government and after consultation with the Council of the Federation; and makes appointments to the posts of federal ministers and chiefs of federal departments (Art. 83). The President submits, according to the final draft of the Constitution, candidates for appointment to the post of chief justice of the Constitutional Court, of the Supreme Court and of the Superior Court of Arbitration, and the post of general prosecutor of the Russian Federation (Art. 83). These prerogatives are substantially more comprehensive than those in any other version of the Constitution.
At the same time, in comparison with the Constitutional Conference draft, the mild innovation of the final version of 10 November 1993 was the right of approval by the State Duma of a candidate for the post of chairman of the government, limiting the competence of the President on this point (Art.83, a).
The Constitution of December 1993 affirms that the President ap-points and dismisses the head of the administration and other officials, plenipotentiary representatives of the President in the regions, the supreme command of the armed forces and, after consultation with the parliamentary committees and commission, appoints and recalls the diplomatic representatives of the Russian Federation (Art.83).
According to the new Constitution, the President is supreme commander in chief of the armed forces (Art.87). He heads the Security Council (Art.83). The President is entitled to introduce martial law in conditions of aggression towards the Russian Federation or for the immediate threat of such aggression (Art.87) and a state of emergency in the circumstances and following the procedures of the Constitution and the Federal Constitutional Law (Art.88). Articles 87 and 88 define a very weak condition for the introduction of martial law and a state of emergency the notification of the Council of the Federation and the State Duma about these decisions "without delay."
A very broad competence of the President was expressed in Article 80 of the April 1993 draft. The President is considered to be an "arbiter in disputes between state organs of the Russian Federation and components of the Federation, and also between state organs of the components of the Federation" (Art.80). If agreement is not reached, he passes the disputes to the Constitutional Court of the Federation for examination. The Constitutional Conference draft reduces this competence to the right to "use reconciliation procedures to settle disputes" and to "pass this solution of the dispute to the relevant court "(Art.85, 1). The final version of the Constitution has preserved this provision in force.
Article 80 of the first Yeltsin draft was designed to provide a very comprehensive competence of the President concerning the suspension of a series of acts of state organs of the Russian Federation, subjects of the Federation or organs of local self-government which contradict, in his opinion, the Constitution or the Federal Treaty, or violate rights and freedoms of individuals. The President submits such acts to the appropriate court with "a demand for the elimination of these violations." Apparently, Article 80 was supposed to transfer most of the competences of the Constitutional Court to the President and to reduce the powers of relevant courts to the execution of decisions of the President.
After discussion in the Constitutional Conference, Article 80 of the first Yeltsin draft (Art. 85 of the final draft) was partially reduced to the right to suspend "the acts of the executive authorities of the subjects of the Federation in case of contradiction by those acts of the Constitution of the Russian Federation or in case of violations of the rights and freedoms of individuals until the decision of this issue by a relevant court." However, the final version of the Constitution extended these reference documents not only to the provisions of the Constitution, but also to "federal laws and to international obligations of the Russian Federation" (Art. 85, 2).
As regards the legislative body in its relationship with the President, the Rumiantsev draft stipulated that the only representative and legislative body of the Russian Federation is the Federal Assembly (Art.84). The Yeltsin draft omitted the definition of "only" and "representative" in the wording of Chapter 5 (Art.80). This was considered by the opponents of the President to be an attempt to transfer legislative competence to the President. The compromise version of July 1993 mentions the Federal Assembly as "the representative and legislative body of the Russian Federation" (Art.93). This formulation was preserved in the new Constitution (Art.94).
The structure of this body is based on the model of major federal states, in particular the bicameral parliament: the Upper Chamber, the Council of the Federation (Soviet Federatsii) and the Lower House, the State Duma (Gosudarstvennaya Duma).(8) The initial presidential draft seriously cut the competence of the parliament in the budgetary sphere (Art.92). The compromise draft of July 1993, reestablished to a large extent the powers of the State Duma in the sphere traditional for the Lower House.
To sum up, all the important elements of the President's status have remained intact in the new Constitution, even if partially restricted in comparison with the initial presidential draft. The scope of federal competences of the President is relatively extensive. In the opinion of certain experts these competences are analogous to the competences of the presidential regime of a unitarian state such as France.
The Components and Structures of the Russian Federation.
The constitutional evolution of the status of federal and federated structures helps demonstratively to define the main trends in the struggle of political forces. The amended 1978 Constitution determines the status of components of the Federation in the following order:
- republic within the framework of the Russian Federation;
- autonomous region (oblast) and autonomous district (okrug)(9);
- territory (kray), region (oblast), city of federal importance.
Of these components only republics were defined as "states possessing full state power, except the powers transferred to the jurisdiction of the Russian Federation"(Art.78). The republics possess their constitutions "in accordance to the constitution of the Russian Federation." The status of the autonomous regions and districts is determined by the laws adopted by the Supreme Soviet. In the amended version of the 1978 Constitution the territories, regions and cities of federal importance obtained the right to have their status (ustav) "in accordance to the Constitution and the laws of the Russian Federation" (Art.78). The 1978 Constitution did not use the term "subject" or "component" of the Federation.
The draft of the Constitutional Commission of the Supreme Soviet changed the order of components of the Russian Federation, and the territories and regions moved from third place to second in this hierarchy (Art.75). The formulation of the status of territories and regions became more extensive, but not equal to the status of the republics (Art.75, 2). The Yeltsin draft of April 1993 presented a very short description of the status of components of the Federation (Chapter 3).
The Constitutional Conference discussed as one of the most important issues the equalization of the status of the components of the Russian Federation. As a consequence of these debates a new formulation appeared in the text of 12 July 1993. The draft (Art. 5) defined the Russian Federation as a federal state consisting of "republics, territories, regions, cities of federal importance, autonomous regions, autonomous districts all being equal subjects of the Russian Federation." It was confirmed that "the subjects of the Federation possess equal rights in their relations with the federal bodies" (Art.5). This was an important step on the way to equalization of the components of the Federation.
The final version of the Constitution includes the formulation from the Constitutional Conference draft. At the same time the "sovereign" attribute has been dropped in respect to the Russian Federation, as well as in respect to the republics within the Russian Federation in Article 1. Article 3 mentions that "the multinational people of the Russian Federation is the bearer of its sovereignty and the only source of power." Article 4 notes that "the sovereignty of the Russian Federation extends throughout all its territory." This gives reason to believe that the drafters were inclined to articulate the doctrine of "indivisible sovereignty" which is impicitly attributed to the "multinational people" and to the Russian Federation. This emphasis in the definition of the Russian Federation is confirmed by Article 5 which does not mention the wording "a federal state", and by statement in the same article that the "federal structure of the Russian Federation is based on its state integrity, the unity of the state p
ower system, the separation of jurisdiction and powers between the power entities of the Russian Federation and those of its subjects."
According to the final version of the Constitution, external economic relations, foreign policy, international relations, international treaties, questions of peace and war, as well as defense and security are in the Federation's exclusive competence (Art.71, k,l,m) which is typical for many federations. The coordination of international relations and external economic relations of the subjects of the Russian Federation and the fulfilment of international treaties of the Russian Federation fall under the concurrent competences (Art.72, o).
A serious issue in the discussion was the right of republics to intro-duce their own citizenship. The right to have separate citizenship was expounded explicitly in Article 6 of the Rumiantsev and the Consitutional Conference drafts and very briefly in the Yeltsin draft of 30 April 1993 (Art.38). The territories and regions, as well as other components of the Federation, are deprived of this possibility; it was felt to be dangerous to have a different scope of rights for different groups of population throughout the Federation and inside the components of the Federation. This was the reason for the reference in the initial Yeltsin draft: "The law on the rights and obligations of citizens must be general, must apply equally to all citizens, and must not create any advantages or privileges for any one of them apart from those envisaged by the Constitution and the law for the purpose of citizens' social protection" (Art.39).
This possibility of violation of the equality of rights and obligations for certain parts of the population led to the introduction, in the compromise draft of the Constitutional Conference, of the phrase: "The citizens of the Russian Federation enjoy full rights in the republics where they live" (Art.6).
Both reservations limit the right to citizenship of the republics. This confirms some real danger of the violation of human rights and fundamental freedoms. Article 6 (2) of the new Constitution stipulates only: "Every citizen of the Russian Federation possess within its territory full rights and freedoms and bears equal responsibilities laid down by the Constitution of the Russian Federation."
The confirmation of the right to introduce citizenship by the republics is missing from the Constitution, but it is impicitly recognized that such a citizenship could be introduced on the basis of Article 73 referring to the scope of the jurisdiction of the republics.
The federal balance was directly affected by the distribution of competences between the Chambers of the Federal Assembly. While the draft of the Constitutional Commission gave more competences to the Lower House (Art.89), the presidential draft of April 1993 bolstered the competences of the Upper House the Council of the Federation (Art.101). The representation of republics and national-territorial units (autonomous regions and districts) in the Council of the Federation with the condition of "at least 50 per cent" of the total number of members of the Council (Art.85), was interpreted by some participants in the Constitutional Conference as discriminating against the ethnic Russian territories and regions.(10) This provision was changed in the compromise draft of July 1993. Its Article 94 provides: "Two deputies from every subject of the Russian Federation are to be elected to the Council of the Federation."
The new Constitution defines the position as follows: "Two deputies from each subject of the Federation one from the legislative body and the second from the executive body of the state power comprise the Council of the Federation" (Art.95).
Such a composition of the Council of the Federation presupposes the presence of representatives from at least 30 republics, autonomous regions and districts, on the one hand, and from 57 ethnically and historically Russian territories, regions and cities, on the other.(11)
The new Constitution enumerates the exclusive competences of the Russian Federation in a way which is identical to the federal treaties and the previous drafts. Article 72 on the joint jurisdiction of the Federation and its subjects includes an explicit set of competences: in particular, such important sphere as "questions of ownership, use and disposal of land, minerals, water and other natural resources" (Art. 72, c). This represents a relative move towards the equalization of the subjects of the Federation in comparison with other drafts and the Federal Treaty, where such competences were attributed in various ways, to different types of components within the Federation.
Another potentially important issue is discussed in Article 67 (3) of the Constitution which provides that: "The borders between subjects of the Russian Federation can be changed by their mutual consent."
At the same time the exclusive competence of the Russian Federation involves such vaguely formulated issues as "the federal system and territory of the Russian Federation," which could provoke a series of collision over practical implementation. None of the drafts mentions constitutional means of changing the composition of the subjects of the Russian Federation, their division or their merger. Indeed, the only legal means for these processes a kind of "self-determination by the subjects of the Russian Federation" is local self-government. However, the number of articles on local self-government dropped from 13 in the amended 1978 Constitution to 4 articles in the drafts published in July and November 1993 (Arts. 130-133). However, the institutions of local self-government could provide not only a means of solving inter-ethnic problems, but also a basis for the re-birth of democratic federalism in Russia.
The Position of the Federal Treaty within the Constitutional Framework.
The subject to be dealt with through the federal treaties concluded in spring 1992 was "a delineation of spheres of jurisdiction and powers" between the federal organs of state power of the Russian Federation and the respective organs of components of the Federation. It is supposed that these three treaties would be part of the Constitution in the form of a Federal Treaty. This idea gave grounds for different interpretations of the question whether the Federal Treaty would be part of the current Constitution or would form part of a new Constitution which was already under discussion. The Constitutional Commission of the People's Congress was reluctant to include the federal treaties in the Constitution. It is stressed that the subject of the three treaties was a delineation of spheres of jurisdiction and powers, but not the creation of a new Federation. Nonetheless, the Federal Treaty was published in 1992-1993 as part of the amended 1978 Constitution.
The Yeltsin draft of April 1993 mentioned the Federal Treaty as a source for constitutional provisions in Articles 5, 56, 57, 61, 62 and others. Such references were dropped in the compromise draft of July 1993, and not reinstated in the final draft Constitution (except Article 11).
The final draft mentions in "Concluding and Transitional Provisions" (1) that in the case of incompatibility of provision of the Federal Treaty with provisions of the Constitution "provisions of the Constitution prevail." The republican and regional authorities have responded negatively to the diminution of the status of the federal treaties within the constitutional framework of the Russian Federation.
Formally, the balance of constitutional federal powers has moved in the new Constitution in favour of the President. However, the federal crisis acquired a new dimension, because the centralist tendency, as well as the adoption of the Constitution, was supported by the forces of the extreme right. Dispite the gradual overcoming of a three-level status for the subjects of the Federation, the republics and regions are dissatisfied with the attempt to extend the powers of federal structures over the components of the Federation.
The evolution of formulations in the constitutional drafts and in the adopted Constitution reflects more a balance of political forces and the de facto situation than a realistic method of Constitutional federal devel-opment which should be based on as low a level and broad a participation as possible. The political instability and devolutionary trends of federal structures, institutions and processes are making the consistent imple-mentation of the new Constitution very problematic.
(1) FBIS Central Eurasia Daily Report Supplement, FBIS-SOV-93-091-S, 13 May 1993.
(2) FBIS Central Eurasia Daily Report Supplement, FBIS-SOV-93-083-S, 3 May 1993.
(3) FBIS Central Eurasia Daily Report Supplement, FBIS-SOV-93-096-S, 26 July 1993.
(4) BBC SWB, Former USSR, Part 1, SU/1843 C/1, 11 November 1993.
(5) The term pravovoye is translated not only as lawful, but sometimes as "law-governed", or "rule-of-law."
(6) The double name "Russian Federation-Russia" was initially introduced into the Constitution by the extraordinary Congress of December 1992, as a compromise between ethnic Russian deputies affirming that the Russian Federation should be considered as Russia or the Russian state, taking into account the absence of the Russian republic inside the Federation, and the deputies from the republics insisting on the multinational federal character of Russia.
(7) Oleg Rumiantsev, Kostitutsionnaya Reforma v Rossiyskoy Federatsii (Constitutional Reform in the Russian Federation), Narodny Deputat, 1993, no. 10, p. 6.
(8) The root of the word duma is semantically similar to the word "a thought" and "to think."
(9) According to the Constitution of 1978, there were 16 autonomous and 10 national regions and districts within the Russian Federation.
(10) The number of republics, autonomous regions and districts represents nearly half the number of the Federation's ethnic Russian subjects with ethnic non-Russian populations of no more than 10 per cent of the total population of the Federation.
(11) A number of autonomous regions, districts and ethnic Russian regions unilaterally enhanced their status to that of republic within the Federation. These changes were not recognized in any Constitutional draft. The republic of Chechnya has declared its independence, which is totally ignored by the drafters.