Clinging to democracy: assessing the Russian legislative-executive relationship under Boris Yeltsin's Constitution.

• Author: Brown, Ian Richard

ABSTRACT

The 1993 Constitution of the Russian Federation has received harsh criticism as a document that confers strong powers upon the executive at the expense of a much weaker legislature. Such a disparity is understandable, as the Constitution was conceived out of the violent confrontation between President Boris Yeltsin and the rebellious communist-nationalist Duma in October 1993. Following the adoption of the Constitution in December 1993, many observers predicted a return to dictatorship in Russia.

Yet in practice, despite much heavy-handedness on the part of the president during the Yeltsin administration, the 1993 Constitution and the institutions it created have survived remarkably intact. The various governmental actors largely have followed the procedures of the Constitution, and perhaps most importantly, Yeltsin never employed the most striking provision at his disposal--dissolution of the legislature.

Nevertheless, critics and supporters alike have reason to be concerned with the current Russian Constitution. While under a generally pro-democratic and pro-Western Yeltsin, constitutional abuses were few, a different result could easily have resulted under a more vigorous executive.

This Note assesses the state of the Russian Constitution, as the country's leadership is handed over from the erratic yet familiar Boris Yeltsin to the firm yet enigmatic ex-KGB colonel Vladimir Putin. Beginning with a brief description of historical factors that affect the current Russian Constitution and Russian attitudes to the concept of the rule of law, this Note then examines the principal constitutional provisions at issue here, namely those concerning the relationship between the executive and the legislature. The Note then analyzes this relationship as it has developed in practice, particularly highlighting the two major confrontations of 1998. Lastly, this Note suggests avenues for constitutional amendment, in order to protect against executive excesses that may be more likely under a leader such as Putin, whose commitment to democracy and the rule of law remains questionable.

1. INTRODUCTION

   Since the adoption of the Russian Constitution(1) in December 1993, many observers have noted its flawed attempt at separation of powers between the legislative and executive branches.(2) Although Russia's new leaders purport to be creating a democratic system, the vastly stronger powers delegated to the president at the expense of the legislature belie the principles behind such claims. Indeed, some have predicted that in such a system the president would abuse those powers, returning the country to a dictatorship.(3)

   Yet despite this decided imbalance of powers among the three branches, Russia's government and Constitution have survived relatively intact during its first six years as a constitutional republic, even through economic collapse in 1998. Former President Boris Yeltsin, despite periodic economic and political crises, neither employed his power to dissolve the Duma nor declared a state of emergency.(4) Meanwhile, the legislature has survived three national elections, and despite its anti-reformist rhetoric, has passed much civil and commercial legislation.(5) In short, the executive and legislative branches have coexisted in relative peace(6) and have even shown brief signs of compromise and conciliation.

   This Note will explain the legislative-executive relationship in the context of Russia's turbulent history of authoritarianism, offering both seeds of hope for the future of the new Constitution and suggestions for reform. While on paper the Constitution appears to allow the president much room for abuse, in practice he has been relatively restrained in his actions, and ultimately, the legislature has briefly even managed to wrest significant concessions from the president without resorting to force.(7) Nevertheless, there is reason to be cautious in measuring the success of the Constitution--with a more vigorous executive, a contrary result could easily have obtained. The accession of former Committee for State Security (KGB) colonel Vladimir Putin to the presidency raises serious questions about the future of Russia's fledgling constitutional institutions.(8)

   Part II will examine the roots of the Russian Constitution, from both a long-term historical perspective, as well as in light of Russia's transition from communism, appreciating the progress the country has made given its essentially embryonic legal and constitutional consciousness. Part III will describe the distribution of powers at issue, focusing on the president's ability to dissolve the Duma and to declare a state of emergency and the Duma's inability to impeach the president. Part IV will analyze how the different branches have employed those powers in their dealings with one another, particularly in the context of their two showdowns in April and September of 1998. Part V will offer some thoughts on the future of the Constitution, suggesting that although the branches may be able to coexist in their current form, the potential for abuse and the need for amendments remain.

2. FROM AUTHORITARIANISM TO DEMOCRACY

   An examination of Russia's prospects as a constitutional republic with an effective legislative-executive relationship must first consider Russia's long history of authoritarianism. This history has shaped Russians' perspectives toward law and the rule of law.(9) For much of the country's existence, the absence of the rule of law and legitimate legal institutions have been the norm, thereby making the current transition to a governmental system based on law and the separation of powers all the more difficult.(10)

   1. Foundations of the Russian State

      Russia owes much of its stunted legal growth to centuries of occupation by the Mongols and general geographic isolation from the ideas of the West. The Mongols, who ruled Russia from the thirteenth to the fifteenth century, laid the foundations of the Russian autocratic state.(11) The influence of Byzantium(12)--with its concept of the unity of church and state--also created fertile ground for tsarist autocracy, from Ivan the Terrible through Nicholas II.(13) The Russian Orthodox religion, which emphasizes conformity and unity, has similarly affected Russian legal institutions.(14) As a result of these influences, by the seventeenth century, Russia possessed

      a complex and cumbersome array of customs, legal traditions, tsarist decrees, clerical rulings, and administrative decisions. The judicial system was rudimentary, the legal profession non-existent, and the powers of the tsar and state unconstrained by law, the church, or the landed nobility, not to mention the masses.(15) Although in the eighteenth century Peter the Great attempted sweeping reforms to bring Russia to the advanced level of the West, most of the legal reforms he realized were "largely concerned with strengthening the power of the state, and thereby enhancing his own power over the regional nobility."(16) Moreover, the law became an instrument of the autocracy, rather than a check on the tsar's power.(17) The autocratic power of the tsar was "absolute and unrestrained."(18) In such a system, in which the tsar was resolved to retain all legislative, executive, and judicial powers, Western legal values had little chance of flourishing. Essentially, the Enlightenment had little effect on Russian legal development.(19)

      Russia has thus shown a "fundamental ambivalence" toward the law throughout its history.(20) On the one hand, there is a desire to protect justice and order in the state; on the other, there is fierce resistance to any reforms that would lessen the power of the monarch.(21) This tension pervades the Russian legal culture as much today as it did in centuries past.

   2. Toward a More Enlightened System

      With the accession of Alexander II to the throne in 1856, and his subsequent freeing of the serfs in 1861, Russia appeared to be moving toward a more liberalized society.(22) The legal reforms of 1864 symbolized this "Golden Age of Russian Law."(23) Two major influences lay behind these reforms, both of which underlie similar legal reforms in the 1980s and 1990s.(24) First, new laws were necessary to facilitate expanding contracts with other European empires.(25) Second, a rising, Western-educated intelligentsia, an intellectual and commercial elite, viewed adherence to the rule of law as an essential characteristic of civilized European states.(26) As a result, the 1864 reforms created a modern judicial system, including competent judges and a professional Russian bar with high standards.(27)

      The reforms, however, generated backlash from two major elements of society. One was the Slavophiles, who rejected the Western ideals that the reforms represented and chose instead "to preserve the uniqueness of Russian society."(28) The other was the revolutionaries, largely students, for whom the reforms did not go far enough.(29) Their increasingly strident demands created an atmosphere of violence, as the autocracy countered with reactionary crackdowns, which provoked acts of terrorism against the government.(30) This downward spiral of terrorist activities, answered by repression from the regime, eroded what little support existed for a modern, functionary system of rule of law.(31) Consequently, Russians lived under a system of virtual martial law for the last thirty-six years of the Romanov dynasty, from Alexander II's death in 1881 to Nicholas II's abdication in 1917.(32) Thus, despite the nineteenth century efforts of legal experts to raise

      fundamental issues of citizens' rights and the appropriate role of the state in the enforcement of law.... [Russia] never succeeded in transforming an authoritarian society to one based on the rule of law. Consequently, a legal consciousness was never institutionalized among state officials or among the citizenry before the [1917] revolution.(33) It was in this turbulent...