#16 - JRL 8397 - JRL Home
Date: Tue, 05 Oct 2004
From: "Gordon Hahn" <gordonhahn@fulbrightweb.org>
Subject: Putin's federative reforms
I would like to add my two cents on the nascent discussion between Ira Strauss, Peter Reddaway, and Robert Orttung on the nature of Putin’s federative reforms. First, it is my view that the original 2000 reform package in the end went a long way in destroying federalism in Russia. However, it would have been possible to implement those changes and have the system function so as not to so severely undermine federalism. Here, the most important problem was Putin’s tendency to interfere in the regional chief executives’ and parliaments’ appointees to the upper chamber, the Federation Council. A purely independent regional appointment process would have allowed the new system of senators’ appointment to provide still some real regional representation in the Center, which is the key function of an upper chamber in a federal system after all. In the U.S. (granted this was the 18th century when democratic theory was just being developed and standards were much lower), federal senators were originally elected by state legislatures. Now with Putin’s power to governors there is a revival in away of the Soviet ‘circular flow of power’ system that can lead to the re-establishment of single-party rule and dictatorship. The governors, it will be recalled, under the abovementioned reorganization of the Federation Council’s composition principle appoint half the senators to the Federation Council, but now Putin appoints the governors. This means that half of the upper house, which as the upper chamber of the federal parliament is supposed to perform the function of ‘checking and balancing’ federal executive branch power, will be appointed by officials serving at Putin’s whim. This will give him control over the appointment of half of the senators who are supposed to checking and balancing his power. Therefore, this step is not only a severe blow to federalism in Russia but to democracy as well. The power of the legislatures to confirm his gubernatorial appointees is limited in the same way the President’s power to appoint the premier is limited. The proroguing of the parliament should it refuse to approve appointees several times has proven to itself limits the Duma’s power to limit presidential power. The checking is weak and the balancing rather unbalanced. Moreover, the routine violation of election law and use of administrative resources in elections by the Kremlin and its regional allies will guarantee pro-Putin majorities in perhaps all of Russia's regional legislatures just as it has in the Duma. This is especially truenot that there will beno opposition governors or republic presidents.
Putin’s original reforms included a federal intervention system that allowed the president in concert with the courts and the Duma to remove governors. This put the regional chief execs only partially under Putin’s thumb. His power to remove chief execs was balanced and checked by the need for the courts to issue several decisions ruling that a chief exec had willfully violated federal law and the Constitution in one of his directives and also required the State Duma to approve a final presidential request asking to have a governor removed. However, the real threat hanging over the governors’ heads was the original measure’s institutionalization, in a way, of Putin’s use of kompromat to persuade regional chief execs to see things his way. The legal amendment that established the intervention mechanism allowed the President to remove a regional chief executive on his own if the General Prosecutor presented him with evidence that said exec had committed a ‘grave crime’, which was left undefined. Now, Putin can act alone without the courts, Duma, or General Prosecutor.
Moreover, Putin required that regional laws and constitutions (charters in the non-national autonomies) be brought into conformity with their federal counterparts. This, in and of itself, would not have struck a blow against federalism, if the Constitution did not stipulate that in cases where federal and regional laws and constitutions contradict each other, the federal documents take precedence. This in essence means that once the federal government has filled the country’s legal space, all regional legislation will be determined by federal legislation and the Consitution, unless the federal government decides to share power with the regions in the series of spheres provided for in the Constitution’s Article 72. However, rather than sharing these authorities, Putin’s policy has been to abrogate or let expire all of the federal-regional bilateral power-sharing treaties and many of the attendant agreements that gave life to Article 72 and much of Russian federalism under Yeltsin without signing any new versions of the former and only a few of the latter.
The reintegration of the executive vertical (a goal which had some logic) achieved by creating the federal districts will now be ensured by appointing the governors. However, the vertical will be split between its upper (federal and regional levels) and lower (sub-regional) parts. To complete the chain of command, which is the logic of Putin’s goals now, requires abandoning the elections of mayors and district (raion) administration heads, something that the legislative harmonization process had been moving away from by requiring the election of raion administration heads and banning their election or appointment to regional parliaments. Now the likely next step is to allow regional chief executives to appoint city mayors and raion administration heads perhaps in the same way as Putin can appoint governors- with confirmation required by city and raion councils. The governors began requesting this in opaque language as soon as Putin issued his proposals on 13 September. It is very likely that the Kremlin will make this ‘compromise’ with the regional chief execs, as it will mean that regional execs share the responsibility for dismantling democracy in completing the construction of the integrated ‘executive vertical’. Allowing regional execs to re-create systems of ‘circular flow of power’ systems in the regions through the seating of city and raion chief execs in the regional parliament will complete the circular flow of power within the executive vertical. This mixing of executive and legislative functions in the regions had been outlawed by the courts in recent years at the behest of federal prosecutors in accordance with Putin’s policy of bringing regional law in to conformity with federal law and the Constitution. Thus, the courts will either have to be ignored or cajoled into overturning their own previous interpretations of the Constitution. This could further solidify the executive’s control over the judiciary. The Supreme Court chairman’s recent comments reflect this concern among at least some judges.
In sum, Putin has not only done away with Yeltsin’s nascent system of asymmetrical federalism, for which there are good arguments for doing, but he has dismantled almost every mechanism that constitutes federalism. Neither are the regions formally represented in the Center in any open democratic institutionalized way, nor do they enjoy any degree of autonomous power because of Putin’s re-centralization policies. In short, there is no longer any thing approaching the even somewhat evenly balanced division of sovereignty between the Center and the regions that marks federalism.