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Mosnews.com/Gazeta.ru
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October 4, 2004
Constitutional Deadlock
Yevgeny Natarov
Most experts tend to agree that the changes to electoral laws initiated by Vladimir Putin violate the spirit of the Constitution but are at odds on whether the draft submitted to the State Duma last week violates the letter of the country’s basic law.
Sergei Kolmakov, vice-president of the foundation for development of parliamentarianism, and Veniamin Chirkin, chief research fellow at the Institute of State and Law of the Russian Academy of Sciences, shared their views on the issue with Gazeta.Ru.
Sergei Kolmakov--
Gazeta.Ru: Is it possible to reform the authorities in Russia’s regions without having to amend the Constitution?
The reform is based on quite a liberal interpretation of Article 77, which deals with the organization of local organs of power. The only problem that arises concerns Articles 72 to 77, where the term “the system of state power bodies” is used, while interpreting that term it is said that Russia is a federative state, based on the principles of the sovereignty of the people. I think various interpretations are possible, first and foremost, of the principles on which the system of state power bodies is based.
Certain precedents have already been established, which may prompt the Constitutional Court to state that the draft bill [on changes to electoral legislation] is not at odds with the Constitution. Although the Constitution was adopted in 1993 the practice of appointing heads of the constituent parts of the federation regional leaders by the president continued till 1995.
Then the authorities ventured on an experiment and allowed the de facto appointed regional leaders to be elected to the Federation Council (the upper house of the Russian parliament) by popular vote. Only after that did the regions begin electing their leaders by popular vote. In other words, although the 1993 Constitution had already been in force, initially regional leaders were appointed to their posts.
There is just one hitch the rule that newly adopted laws must not infringe on the rights of citizens. I am convinced that that complaint will be filed to the Constitutional Court, and will be based on the ambiguous interpretation of the “system of state power bodies” (Articles 72 to 77) and on the second paragraph of Article 55. The interpretation of the provisions of the Articles 72 to 77 is a matter for the Constitutional Court.
And what do you think?
I believe that even if they [amendments to the electoral laws] do not directly violate the letter of the Constitution, they do violate its spirit.
And why do you think they do not violate its letter?
I have already said before: from the very beginning our Constitution was about calling a spade a spade, so constitutional-monarchic was it, vesting the executive authorities with such broad powers… As to its spirit, certainly it is being violated. But violation of the letter is yet to be proven.
Paragraph 2 of Article 55 reads: “No laws denying or belittling human and civil rights and liberties may be issued in the Russian Federation.” But if the bill is adopted Russians will no longer have the right to elect governors.
True. And you will be told that the electoral system is being replaced with a new one where the citizens of the Russian Federation will enjoy the same electoral rights.
I was able to cast my vote for the governor, but I now can no longer do so…
And you will be told that the rule of people’s representation has not been violated because you still vote for deputies of the legislative assembly in your region. The president only proposes a candidacy while the deputies of the legislative assemblies elected by popular vote can either endorse it or reject it.
Your objections pertain to the spirit of the Constitution, while by the letter it reads that democratic rights may not be infringed upon. The question arises as to how to interpret the concept of democratic rights. You may insist that election must be based on direct and popular vote while the president will offer another interpretation saying that you still enjoy your rights in full, achieving the same results in two stages.
Veniamin Chirkin--
Gazeta.Ru: Is it possible to reform the authorities in Russia’s regions without having to amend the Constitution?
It is possible. The measures proposed on introducing a proportional electoral system instead of the mixed one and elections of governors not by direct popular vote but by regional legislative assemblies are not at odds with the Constitution, as the Constitution contains no rules governing those matters.
Critics of the reform cite paragraph two of Article 11 that reads that “state power in the constituent parts of the Russian Federation shall be exercised by the organs of state authority formed by them”.
And those organs will elect governors.
But the president will also take part in the election procedure.
The president will not take part in electing; he will only nominate a candidate.
But political parties take part in elections by nominating their candidates.
Participation in elections can take various forms, for example, establishing constituencies, forming lists of voters, campaigning. The Constitution says that organs of state authorities exercise state power. And legislative assemblies are formed by the regions.
After all, there are various ways of obtaining the post of a regional leader. In many countries such governors are appointed by presidents, as, for example, in India.