David Lewis, modern English political analyst, made a serious caveat in one of his latest articles “The Moscow Consensus: Constructing Autocracy in Post-Soviet Eurasia” in the OpenDemocracy edition – “in much of the former Soviet Union, authoritarianism has become the default political system, informed by a remarkably unified set of ideas about the world, the state, and about politics and society, that resonate among elites.”[1] It is customary to be called "the Moscow consensus" in political and legal sciences. Its norms and values, in my opinion, are one of the major problems for liberal democracy to which we aspire throughout our region.
The so-called "Moscow consensus" is a very complex and dynamic phenomenon. Among its decisive components is a sort of a political order based on the existence of a strong state and hierarchical political elite as a bulwark against chaos, provided that all other participants in the political regime are subordinated to it.
The main carrier and source of "the Moscow consensus" is Russia, which forms as a state first and foremost in its territory the special phenomenon, and also tries to spread it to other post-Soviet countries in various forms and influences. So I am confident that problems of the Russian statehood should be discussed in Ukraine due to such circumstances.
First, the Russian Federation is not only the aggressor country, but also a country that has recognized and included the annexed territories of Ukraine as its federal part, contrary to international law, its traditional principles and processes.
Second, Russia is actually interfering into the exercise of the national and public sovereignty of Ukraine, by imposing on Ukraine territorial elements not typical for Ukrainian statehood and our constitutional order (federalization, state bilingualism, divisibility of the national territory) and tried and still has not lost hope to dictate us their vision of constitutional reform, decentralization of power, and the procedure for amending the Constitution.
In particular, it reads about imposing the model of building Ukraine not just on the regional basis, but on using more complex model - forming separate territorial units (some regions of Donetsk and Lugansk Provinces) with special status - establishing quasi-entity, with extended powers, preferences, commitments of Ukraine in the political, law-enforcing, social, economic and cultural spheres.
The externally imposed model differs significantly from the Ukrainian legal notion of local governing reform, decentralization, based on the need to reform mainly local communities, as reflected in the proposed amendments to the Constitution concerning the decentralization of power, current legislation, and recently adopted reform laws on local governing.
However, according to the Minsk 1 and 2 agreements, Ukrainian authorities undertook to adopt a permanent law on the special status of certain areas of the above Provinces, the list of guarantees and preferences for which was fixed at the level of the Law of Ukraine "On Special Procedure for Local Governing in Some Areas of Donetsk and Lugansk Provinces "(of 16 September, 2014, # 1680-VII) [2], which in many ways corresponds to the criteria of federalism, though it does not come right out with "federation" .
That algorithm was actually laid in Minsk agreements. And I think that the lack of solid state political and legal position as well as the lack of professionalism resulted in leading us "smartly" at one time to "federalism", and objectively speaking – to the predicament both in establishing truly sustainable peace in our country, and the issue of the ubiquity of the constitutional reform as for "the decentralization of power" in Ukraine.
Third, it is sad, but the tendencies to have a "strong hand", fighting the freedom of speech, intolerance for political competition, reducing the role of parliamentarism, etc. have been emerging in the state of Ukraine in recent years, which in the scheme of things is a sort of a tendency of authoritarian rule right in the trend of " the Moscow consensus ".
Thus, it is very important to make political, legal, and scholar analysis of the federal system of Russia, its quality and specific features, in the context of our Ukrainian problems and attempts of Russia to influence this country in various ways.
"The idiosyncrasy" of the federal system of Russia, specific features of its formal structure, real functioning and trends should be subject to objective and impartial analysis and discussion for us now and in the future, in the context of forecasting and future developments in Russia itself, and the relationship of the two countries, as well as the global and European geostrategy.
Thus, Article 1 of the Constitution of the Russian Federation, among other things, stipulates that Russia is a federal state with a republican form of government.
Article 5 of the Constitution and its item 3 “The Federal System” determine that
1. The Russian Federation consists of equal subjects of the Federation: republics, territories, provinces, federal cities, autonomous region, autonomous districts.
2. The federal structure of the Russian Federation is based on its state integrity, unity of the state power, differentiation of subjects and powers between the state authorities of the Russian Federation and those of subjects of the Russian Federation, equality and self-determination of peoples in the Russian Federation.
3. All the subjects of the Russian Federation are equal among themselves in relations with federal state authorities. [3]
The following could be stated from the viewpoint of conventional concepts and those of federalism and federations as well as their classifications:
First. The Russian Federation is a constitutional and contractual federation according to the nature of the formation of federations. In other words, it is of a complex and mixed character.
It can be pointed out that the contractual nature of the federation is due primarily to the fact that the Federal Treaty was signed between the federal centre and the regions on 31March, 1992 [4], which was approved and included into the Constitution of the Russian Federation as its integral part by the Resolution of the Congress of People's Deputies of the Russian Federation on 10 April, 1992. [5] The Treaty is, in fact, the first document that describes the federal system of Russia. The agreements were signed by the heads of 87 subjects of the Russian Federation, the document was not signed at the time by the heads of the Republic of Tatarstan and the Chechen Republic.
That was preceded by rather complex historical events. A process started in the Russian Federation that later became known as the "parade of sovereignties", following the Declaration of Sovereignty of the Russian Federation of 12 June, 1990, ratification of Belavezha Accords and denunciation of the Union Treaty of 1922 by the Supreme Council of the Russian Federation of 12 December, 1991. We are speaking about a unilateral raising of the status of national autonomy – approval by autonomies of their declarations of sovereignty. Autonomous regions except the Jewish Autonomous Region, declared their status of the Russian Federation constituent republics. Autonomous districts, in turn, declared their direct entry to Russia, discontinuing their subordination to territories or provinces. And a substantial number of the republics tried not to keep to the rule of federal law in the declarations. Some republics declared the possibility of secession from Russia (Komi, Tatarstan), or declared themselves sovereign nations (Udmurtia, Kalmykia). Other republics (two) did not consider it necessary even to use the words "being part of the Russian Federation" in their declarations (Tatarstan and Chechen-Ingushetia). As a result, it can be said that most of the republics did not intend to enter into federal treaty in its relations with the Russian Federation as a state, but a confederal one. Thus, the reform of federal relations in Russia had an objective character after the collapse of the Soviet Union in early 1990s, leading to the conclusion of the Federal Treaty of 1992 in particular historical circumstances.
On the other hand, the constitutional nature of the federation is due to the fact that the Constitution of 1993 secured not only the form of the federal structure of the state (defined in the Federal Treaty), but the basic principles of relationships. According to Russian political scientist M.O.Baranov, the preparation of the Constitution of 1993 stipulated selection of the federal state system in Russia by three main reasons: the need to preserve the integrity and prevent territorial disintegration of the country along the lines of the USSR; reforming national relations, and the need to restrict the spread of irregular economic decentralization. [6]
Second. The Russian Federation can also be considered as a mixed type of a federation, built both at ethno-national and territorial principles, according to the nature of subject formation.
In fact, the Treaty consisted of three groups of agreements on the delimitation of powers, as the federal executive authorities signed agreements with executive authorities of:
1) "sovereign republics, being part of the Russian Federation",
2) territories, provinces and cities of Moscow and St. Petersburg, and
3) autonomous region and autonomous districts.
Third. The Russian Federation, as well as many other federations is a poly-subject one, according to a degree of formation (division) of political-and-administrative structure. There are 83 federal subjects: 21 republics, 9 territories, 46 provinces, 2 federal cities, 1 autonomous region, 4 autonomous districts.
Fourth. According to the legal status, the Russian Federation is an asymmetrical federation, indicating the heterogeneity of its subjects.
An indication of the federation as a form of territorial state system is the statehood of subjects of the Federation. The main criterion of statehood of subjects of the Russian Federation is delegating them their own state power, recognized by the federation, but limited by the Federal Constitution.
The Constitutional Court concluded in its decision in 2000 that subjects of the federation are not endowed with sovereignty: the sovereignty is one and indivisible and applies to the entire territory of the Russian Federation as a whole. At the same time the Court stressed that the absence of sovereignty does not affect power integrity of the subject of the Federation granted by the Constitution of the Russian Federation.
The theory of asymmetric federation allows legal inequality between the subjects of the federation. The Russian Federation contains entities that have different statuses and enjoy different rights.
An important feature is in particular a mechanism of the formation of the federation. For instance, in Germany the federation (centre) received power from lands, the history of which far exceeds the history of the federation, while the opposite happened in Russia - establishment of the federation was accompanied by handing over part of the powers from the centre to subjects of the Federation, which appeared for the first time.
Fifth. Three different spheres of competence are established by the Constitution of Russia in areas of responsibilities: 1) federal, 2) joint competence of the federation and its subjects, 3) and the exclusive competence of the federation.
The principle of unity of state power is specific for Russia, in terms of its territorial system. The main essence of the principle of federal relations is that federal executive authorities and executive authorities of the federal subjects form a single system of executive power in the Russian Federation within the exclusive jurisdiction of the federation, and within its joint jurisdiction with subjects of the federation. [7]
In contrast, subjects of the federation are also required to follow the instructions of the federation under certain circumstances in Germany. However, the German constitution does not establish a single system of state power. On the contrary, the principle is rather the presence of its own independent system of power both of federation and a federal subject.
However, it is assumed, first and foremost in Russia, that the Russian state has always been characterized by a high degree of centralization of state power. Even the declaration of a federal form of state system has not eliminated the inherent centralism.
Sixth. Functioning of the territorial system is provided among other things by a bicameral parliament - the Federal Assembly - where the Federation Council is composed of two representatives from the legislative (representative) and executive bodies of state power of each subject of the federation and not more than ten of the members of the Federation Council - representatives of the Russian Federation, appointed by the President of Russia, in fact "indirect" election to the House of the Federal Assembly is held. These are general formal characteristics and features of the federal system of the Russian Federation according to the conventional classification criteria of the concept. According to a well-known American researcher of federalism Daniel Elazer, ideally all institutional forms of federalism are called to find ways that would allow to combine unity of administering polity (concept of state organizing, institutional essence of politics) as a whole with sufficient level of self-government of its parts and / or to establish a system of taking concerted efforts in governing in order to promote democratic self-rule throughout the state or within its components. [8]
However, Thomas Jefferson (the 3rd US President) had every reason to raise the issue at his time that the federation should create more conditions for a democratic political regime and less - for an authoritarian one. "Federalist revolution" is developing in parallel with democratization.
Federation is not a once and forever cemented institutional form, on the contrary, one of its main advantages lies in adaptability, ability to quickly and flexibly respond to new internal and external challenges, challenges of globalization, development of new forms of self-governing, etc. Federation is in constant search for balance between centrifugal and centripetal tendencies.
The example of mobility even in traditional federations is the trend developing now in the US, which aims at reducing the role of the national government and the expansion of powers of states and local communities. Social reforms in 1996 were the first major step in this direction at the time. Today, similar changes come forth in the environment, transport, education. This movement actively generates all the time new contours of political discourse in the USA. Active public debate to change the system of federalism along these lines is carried out today in Germany. Readiness of the society and the state to implement federal approaches and new forms of relationships may be considered as an indicator of their democratic maturity.
However, this classical approach might not work in the Russian version of the federation. There have obviously always been serious problems with the Russian ideal of the federation. That is why today the Russian science of constitutional law is in search of universal and stable concept of federalism and the federal authorities of Russia have been on the so-called "reformist path, aimed at strengthening the vertical of power" since about 2000.
The views are actively promoted today in Russia that the formation of a strong centralized power in Russia is traditionally affected by the fact that it has been developing historically as a single unit. The dispute about the historical high concentration of centralized power in Russia should be left to historians. More impressive is that rhetorical questions can be heard in this context even among the Russian scholars, whether federalism is required for Russia in general, if power is so severely centralized in Russia both mentally and historically?
So what is the current political design of the Russian federal structure?
It should be noted that competences, their level and compatibility, are among the main issues of the federal system. The constitutional and legal mechanism of distribution of powers between the Russian Federation and its subjects, above all in the field of legislation, is based on the method of "residual jurisdiction" without a clearly defined range of issues and areas of exclusive competence of the Russian Federation. Inexhaustible list has been assigned to the Constitution of the Russian Federation and federal constitutional laws, i.e. at the federal, central level. There is the amount of shared competence of the Russian Federation and its subjects, and only everything beyond the exclusive and shared competences belongs to subjects of the Russian Federation.
Article 73 of the Constitution of the Russian Federation confirms in this case the residual "full state power for the federal subject". Hence the practical trend is that the federal legislator actively interferes into the exclusive competence by regulating the issues only of subjects of the Russian Federation. [9]
Professor V.S. Nersesyants, well-known Russian constitutionalist, whose opinion we have every reason to trust, says that "... despite the presumption of competence, the Constitution of the Russian Federation leaves virtually no objectives of competence to the exclusive jurisdiction of federal subjects". [10]
Difficulty of practical implementation is also in the fact that objectives of competence and responsibilities are not distributed according to the principle of distribution of authorities as it is, for instance, in Germany. In other words, the federation has exclusive benefits both in legislative and executive powers over the competences of its subjects; e.g. the basis for the distribution of authorities in the Federal Republic of Germany is the principle of subsidiarity, as a key European principle. There is the so-called presumption of competence of lands, under which exercising state powers and fulfilling state tasks are assigned to the lands until the German Principal Law does not envisage or allow other legal regulation. This presumption is further specified in the presumption of legislative, executive, and judicial competence of lands.
Thus, comparing, for instance, German and Russian federalisms we can assert that the European principle of subsidiarity does not work in Russia per se, so to speak.
The judiciary system is not territorially divided between the federation and its subjects, as well. The judicial system is built proceeding from its centralized principle.
The sphere of international relations is also handed over to the federal centre.
Thus, all three traditional branches of power – legislative, executive, and judiciary are dominated by a centralized, actually unitary approach. Among all the features and characteristics of the federal structure of Russia, I would like to attract attention to another very important mechanism - that of legal mutual influence between the Centre and the federal subjects.
For example, a characteristic feature of German federalism is the existence of principles, legal mechanisms to prevent centrifugal tendencies and possible disputes of competence. The specific feature of Russian federalism is the lack of legal precision and legal regulation of such issues. The Central Federal authorities of Russia have been formed so as to be always confident in taking decisions necessary for these authorities.
For instance, the Federation Council is the Supreme House of the Federation Assembly. Russian law does not oblige regional representatives to vote in accordance with decisions of the Federal subject bodies. An equal number of representatives of the federal subjects does not reflect the real representation.
The State Council (Gossovet) under the President of Russia functions today in addition to the Federation Council. The most important issues concerning budget, foreign policy, reforming the country are submitted to the State Council. Formally, the decisions are of a recommendatory nature. However, this body, for instance, may indicate the need for adoption of a law. Adding the traditional right for legislative initiative of the President of Russia, and the fact that his initiatives are always supported, the obligatory nature of the decisions of the State Council results actually from its recommendations.
The Constitution of the Russian Federation contains general provisions of influence and direct capabilities of the intrusion of the federal centre into the affairs of federal subjects. These are the measures of 1) preventive control, and 2) direct coercion.
Preventive soft measures are the right of the President to suspend acts of executive bodies of federal subjects, when they contradict to the Constitution of the Russian Federation, federal laws, or violate the rights and freedoms of a person and citizen (P 2, Art. 85, Constitution of Russian Federation).
In accordance with the federal legislation the President of the Russian Federation is entitled to give warning to a top executive or even a legislature of a federal subject.
These preventive measures are complemented by measures of coercion:
- initiating termination of powers of legislative (representative) bodies of the subject of the Russian Federation;
- removing from office, if a month passes after the warning from the President and the required steps are not taken;
- institute of the direct presidential rule without a balanced agreement by the Federation Council;
- introducing the institute and ample powers of plenipotentiary representatives of the President in federal districts. Representatives in South Federal District (the Crimea and Sevastopol have been included recently) and in Chechnya have special powers;
- mechanisms of direct coercion and restrictions of activities of bodies and acts of the federal subjects in the state of emergency;
- as a rule, there is extended general supervision of the Prosecutor of the Russian Federation.
In addition, the institute of plenipotentiary representatives of the Russian President in federal districts is used for controlling the implementation of federal laws, decrees and orders by the President, decisions and orders of the government and implementation of federal programmes. The plenipotentiary representative submits proposals to the President to suspend acts of executive authorities of the federal subjects. Thus, the information submitted by the representative may potentially serve as the reason for applying both preventive measures, and measures of direct coercion to the federal subjects. [11]
Moreover, it is interesting that most preventive measures and means of influence of the centre on federal subjects, their authorities and officials are determined not at the level of the Constitution, but at the level of federal laws that, in principle, is not justified in terms of the theory of law and state, as it always leaves room for expedient "political influence" on these relations. So, one can hardly say that Russia is a classic embodiment of basic and fundamental principles of federalism not only from the formal legal and institutional point of view, but also from the practice of informal relationships between the federal centre and federal subjects. This is not a classical federation. The tendency towards comprehensive centralization is evident. Therefore, the Russian Federation is often called a centralized federation.
It could also be noted under a new approach to the study of federalism that Russia has an "immature" form of federation; however, using a hybrid war language, we can definitely say that the immaturity of Russian federalism, first of all, is an indication of the immaturity of democracy. And it directly affects not only Ukrainians, but the whole world.
Federalism is so far difficult to fit into the Russian national historical tradition of governance, the same as democratic tradition of dialogue between regions and the central authorities, as relations between the federal centre and the subjects of the Russian Federation have been traditionally built on strict, centralized basis, yet still unconditional fulfillment of orders of the centre by regions, and the desire of federal authorities to get their hands again on the levers of pressure on regions are traditional.
However, this model of post-Soviet autocracy lays the foundation for the modern authoritarianism, and it is really a serious problem for liberal democracies, as it has got a global response and many of its features can be traced in developing countries: manipulation of the media, guided civil society, merging power and money.
In short term, this authoritarian model can even be seductive to societies in which the changes occur rather quickly.
In the long term, this model cannot properly manage at the same time complex social and political challenges of globalization and rapid technological changes.
Therefore there is a need for new alternatives that could challenge the trend towards total authoritarianism at the post-Soviet space and lead to the establishment of democratic nations, based on a strong and developed civil society, including Russia.
References:
1. Lewis D. “The Moscow Consensus: Constructing Autocracy in Post-Soviet Eurasia” // [electronic resource]. - Access: https://opendemocracy.net/od-russia/david-lewis/Moscow-consensus-constructing-autocracy-in-post-soviet-eurasia
2. Law of Ukraine "On Special Procedure for Local Governing in Some Areas of Donetsk and Lugansk Provinces" of 16September, 2014 # 1680-VII // [electronic resource]. - Access: http://zakon3.rada.gov.ua/laws/show/1680-18
3. Constitution of the Russian Federation // [electronic resource]. - Access: http://www.constitution.ru/
4. Federal Treaty. Moscow, 31 March, 1992 // [electronic resource]. - Access: http://constitution.garant.ru/act/federative/170280/
5. Decision of the Congress of people’s deputies of the Russian Federation of 10 April 1992 N 2689-1 «On the Federal Treaty" // [electronic resource]. - Access: http://ppt.ru/newstext.phtml?id=66440
6. Baranov N.A. Modern federalism and federations // [electronic resource]. - Access: http://nicbar.ru/region_07.htm
7. Kutafyn O.E. Scientific and Practical Comments for the Constitution of the Russian Federation. Moscow: "Yurist." 1997. Article 5. S.110; Article 77. S.458.
8. Elazer D. Comparative federalism // Polis, number 5, 1995. S. 106-115.
9. I. Machulskaya Federal Parallels. Federal magazine "Senator". Russia // [electronic resource]. - Access: http://www.senat.org/Germany/Newrus-4.html
10. Problems of the General Theory of Law and State. Ed. Nersesyants V.S., M .: «Norma-Infra-M". 1999. C.622
11. A. Salenko Federalism in Russia and Germany: Comparative analysis // [electronic resource]. - Access: http://law.edu.ru/book/book.asp?bookID=115307
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* Information about the author:
Maryna Stavniychuk, PhD in law, expert of the European Commission for Democracy through Law
The article is based on the address to the International Conference "Russian Statehood: Stable Instability."