La Constitution Russe Est-elle Libérale Ou Autoritaire ?

FRANGIADAKIS Mélina Conference 2RI2

Professor SAKWA March 2006

SEMINAIRE D’OUVERTURE : RUSSIAN POLITICS

Essay : Liberal or authoritarian ? How would you evaluate the 1993 Russian Constitution ? Draw on the Constitution to illustrate your answer.

The adoption of a new constitution in Russia on the 12th December 1993 was the first step ahead towards the establishment of democratic institutions in the country. The presidential nature of the first post-Soviet constitution actually is the result of the power struggle between Yeltsin and the Parliament in the early 1990’s, which the President won. The fact that Russia is such an executive-dominant system often leads foreign people to think that Russian citizens are subjected to an authoritarian constitution. The 1993 Russian constitution has been inspired by the French constitution of the Fifth Republic. The text seems to mix both liberal principles and authoritarian elements probably inherited from the Tsarist and Communist eras. So given this, how can we qualify the Russian Constitution ? Does it guarantee individual liberties or would it aim at « favouring absolute obedience to an authority1 » ? I will argue that the current Russian constitution, in spite of its highly-presidential nature, is a classical liberal constitution. On the basis of a definition of the constitutional liberalism, my paper will analyse some significant articles of the constitution through several analysis frameworks : I will focus on the individual liberties, the rule of law and the separation of powers. Then I will try to answer the following question : do the constitutional presidency powers inhibit the liberal principles implemented by this constitution ?

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Trying to define the « constitutional liberalism » concept To evaluate the liberal character of the Russian constitution, we have to study the notion of liberalism applied to politics. The constitution is at the top of the internal hierarchy of norms. For this reason, the word « constitutionalism » has to see with this supremacy of the constitution in the governance of a country. According to some authors, « constitutionalism is an institutional realization of liberalism. By constraining and regulating the government's power through a supreme constitution, and by preserving the sovereignty of people, constitutionalism ensures that the government is limited2 ». Then, what is precisely a liberal constitution ?

Fareed Zakaria explains that constitutional liberalism supposes several fundamental elements3. First, the organization of « free and fair » elections, one of the basic principles of democracy. It implies on the one hand a free electoral process, that is one where human rights such as freedom of speech and expression by electors, parties, candidates and the media, are respected, and on the other hand, a fair electoral process with for example guaranteed rights and protection through the constitution and electoral legislation and regulations4. Second, constitutional liberalism relies on the rule of law. It means that « no individual, president or private citizen, stands above law. Democratic governments exercise authority by way of law and are themselves subject to law's constraints5 ». Thirdly, the separation of powers (executive, legislative and judicial) is also one of the central characteristics of constitutionalism.

Therefore, we can sum up by stating that constitutional liberalism is about limitation of powers. And it has also to see with the « protection of basic liberties of speech, assembly, religion and property » as Zakaria puts it.

Let’s see now to what extent the Russian constitution guarantees constitutional liberalism in light of Zakaria’s definition and of a detailed analysis of the ratified constitution.

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http://dictionary.reference.com/search?q=authoritarian (access : 08/03/2006) http://www.oycf.org/Perspectives/6_063000/what_is_constitutionalism.htm (accessed 26/03/2006) 3 Fareed Zakaria, « The rise of illiberal democracy », Foreign Affairs, November 1997. 4 http://www.commonborders.org/free_and_fair.htm 5 http://usinfo.state.gov/products/pubs/principles/law.htm 2

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Individual liberties and popular sovereignty The first two chapters of the constitution aim at defending individual liberties and in that sense, the text appears to be remarkably progressist and modern.

Above all, we have to insist on the fact that the stress is laid on the individual as of the first lines of the constitution, which is something typically liberal. Article 2 indeed explicitely declares that « the individual and its rights and freedoms are the supreme value ». And many other articles go in this direction too and we find disposals concerning the « basic liberties » Zakaria insisted on. It is mentionned that Russia is a « social state » and guarantees « a worthy life and free development of the individual » (article 7). The right to property is recognized and mentioned in articles number 8, 9 and 34. The Chapter 2 is entitled « Human Civil Rights and Freedoms » and lists social, cultural and economic rights. It is interesting to notice that those rights are conceived as Human Rights and not only reserved to Russian citizens. For example, Article 22 states that « each person has the right to freedom ».

The rights which are enumerated in the present chapter corresponds to international standards in this field. Article 17 is for instance a good basis for the legal status of the individual. These are basic social rights commonly found in modern democratic constitutions. We find here a « basis for a democratic political order based on Human Rights and the Rule of Law 6». Among those fundamental rights, it is worth quoting freedom of religion (article 28, linked to Article 14 which says that Russia is a « secular state »), freedom of language (article 26), freedom of thought and speech (article 24, whose fifth paragraph states also that « the freedom of mass information is guaranteed »), the right of association (article 30) and the right, for the Russian citizens, to assemble (article 31). To finish with the rights Zakaria had mentioned, Article 81 lays out that the President of the Russian Federation is elected « on the basis of universal, equal and direct suffrage in a secret ballot ». Moreover, Article 32 proclaims : « Citizens of the Russian Federation have the right to elect and to be elected to bodies of state power and bodies of local self-government, and also to take parts in referendums». Thus, the fundamental conditions to « free and fair elections » seem to be fulfilled.

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see the works of the Venice Commission available at : http:// www.venice.coe.int/docs/1994/CDL(1994)011e.asp

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Other articles are important too, even if they are not directly related to Zakaria’s definition. Among them, Article 33 may be worth quoting since it legalizes the right for the Russian citizens to send individual or collective appeals to state bodies. This is a huge improvement and I do not think that we would be able to find such articles in authoritarian constitutions ! To my mind, the same review could be made for Article 49 which proclaims that « each person accused of having committed a crime is presumed innocent until its guilt is proved ». Finally, Article 62, paragraph 3, highlights the equality of rights and obligations between Russian citizens, stateless persons , and foreign citizens on the Russian territory.

Being given all these provisions, it was almost logical that the constitution recognizes and promotes the popular sovereignty. Indeed, Article 3 affirms that « the holder of the sovereignty and the sole source of authority in the Russian Federation is its multinational people ». All this leads us to think that government accountability will be reinforced.

Rule of law and hierarchy of norms We explained that the universal application of the rule of law is another parameter to assess the liberal character of a constitution. However, the constitution defends this principle since Article 1 defines the Russian Federation as « a democratic federative rule-of-law state with a republican form of government », which has itself the role of implementing some « measures to ensure the rule of law » (Article 114.f). Furthermore, Article 15(2) provides : « Bodies of State power, bodies of local self-government, officials, citizens and associations thereof are obliged to observe the constitution of the Russian Federation and the laws. »

In the same way, a brief comment must be made about the relationship between domestic and international law. It is interesting to observe that the constitution is quite clear about the hierarchy of norms. Article 15(4) recognizes that both international customary law as well as treaties are part of the Russian legal system. International Law is given priority over domestic legislation at the statutory level7.

Those provisions undoubtedly contribute to the strengthening of the rule of law in Russia, cutting away the possibility of finding an authoritative character to this constitution. 7

see the works of the Venice Commission available at : http:// www.venice.coe.int/docs/1994/CDL(1994)011e.asp 4

Yet, an independant Constitutional Court is a prerequisite to the rule of law. Is it guaranteed by the constitution ?

Limitation of powers go further with separation of powers and pluralism It is clear that the Russian constitution enshrines the principle of separation of powers. Two kinds of separation of powers have to be distinguished : vertical separation, namely between « components » of the Russian Federation, and horizontal separation, i.e between the three branches of powers at the national level.

Anyway, as Thomas Remington puts it, « separation of powers is considered to be a cornerstone of the Russian constitution of 19938». Article 10 actually declares that « State power in the Russian Federation is exercised on the basis of the separation of legislative, executive and judicial powers. ». Yet, it seems to be legitimate to criticize the second sentence of this article which is misleading since it states that « Bodies of legislative, executive and judicial powers are independant ». Legislative and executive powers should not be « independant ». On the contrary, the constitution has been written in order to determine the ccoperation between these two bodies of State, they have to be interdependant. The judicial power is the only one to has to remain independant.

Even if the constitution is asymetric enough, because of the numerous powers of the President which I will examine later, the State Duma and the Constitutional Court limit the extent to which the President can exercise these powers. Article 85 concerns disputes that may happen between state bodies and is a good example of that limitation of powers. In case of such a dispute, this article requests the President of trying to seek agreement first. If he does not manage to seek an agreement between the Parties, then he had to refer to the Constitutional Court. It means that the President has no judicial power but shall act as a political referee only. Consequently, the horizontal separation of powers appears to be effective in spite of its « lack of balance9 ». But we cannot deny that the Constitutional Court has no real means to control the President’s actions and that is a problem to prevent from authoritarian drifts. What about the vertical separation of powers ?

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http://www.carnegieendowment.org/events/index.cfm?fa=eventDetail&id=250& Richard Sakwa, in Presidential Power : the struggle for hegemony. 5

Chapter 8, related to Article 12, provides for the separation of the bodies of Local SelfGovernment, as it is entitled, from the system of State bodies. It is reported that « Within the limits of its powers local self-government is independant ». The delimitation of powers is actually partly done by the constitution.

To my mind, the question of the limitation of power is related to the one of pluralism which could also account for the nature of the constitution. Pluralism is registered in the new constitution, probably in reaction to the years of Single-Party dictatorship. Article 13 stipulates on this subject that « No ideology may be established as the State ideology or as a compulsory ideology » and that « in the Russian Federation, political diversity and a multiparty system are recognized ». These provisions condition the principle of « free and fair » elections we already evoked.

Constitutional presidency powers : an obstacle to the liberal tenets of the constitution ? We have to admit that authoritarian rule is quite common in all post-Soviet State and it means that authoritarianism is persistent to political changes. We have shown that the 1993 Russian constitution responds to classical liberal principles. However, we shall now evaluate the consequences of a highly-presidential system on those liberal tenets. To what extent could the President threaten them ? Or is such a strong President necessary for Russia to quit the communist era ?

Marcia A. Weigle affirms that « In the absence of the prerequisites for a selfgoverning political and civil society, the transition from communism to liberal democracy will be spearheaded by a strong state – one whose leaders have the authority to consolidate the power of State institutions, implement economical and political reforms based on a broad popular mandate10 ». And that is why we find so many « authoritarian elements » in the text of the constitution. But such strong presidential powers also have a disadvantage : as a matter of fact, the polity depends on the personnality of the President.

Let’s examine some of the constitutional presidency powers (Chapter 4). First, Article 83 lists an impressive quantity of nomination powers. Two of them hold our attention : 10

Marcia A. Weigle, Russia’s liberal project : state society relations in the transition from Communism, Penn State Press, pp.325-326. 6

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The President appoints candidates to the Constitutional Court and to the other High Courts of Justice of Russia (article 83 f) ; we may fear a politization of the members of the courts ; anyway, it is an attack against their independance.

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The President appoints the head of the government who has to be accepted by the State Duma (article 83 a) ; the Duma may refuse up to three consecutive candidates. But then, the President has the power to dissolve the Duma and this can be a vicious circle and stress the authoritative character of a President!

Beyond those nomination powers, the President has also important legislative powers (legislative initiative Russian citizens do not have, veto right, mandatory decrees and directives). Article 80 (3) provides that he is responsible for both state’s domestic and foreign policy, which is rather significant. Thus, the government may easily be under his influence or even controlled by him or at least largely dependant on him. (Besides, the President has the power the reject the resignation of the government, as well as the discretionary power to dismiss the government). The President is able to call nationwide referendums but nothing is reported about the results : must he systematically take them into account ? And finally, Article 93 shows how difficult it is to remove the President from office.

Yet, the President is the guarantor of the constitution (Article 80(2)) and that is one more important step towards liberal constitutionalism. Moreover, the President is elected for a four-year mandate and cannot make more than « two consecutive mandates » (Article 81(3)) probably to prevent from experiencing long-term dictatorships. That is why we can conclude to a Presidential system since the Russian President has the crucial power to influence decisions he does not personally make, but to in no case it would lead us to conclude that this is an authoritarian constitution.

Constitutional provisions versus Political reality Now, we have to disconnect the « constitution promises » from the « constitution ambiguities11 » in order to moderate our conclusions. There are gaps in the legislation ; it accounts for the importance of the President mandatory decrees for instance. The popular sovereignty has in practice, appeared neglected. There is still no genuine press freedom or 11

Robert Sharlet, « In Search of the Rule of Law », in Developments in Russian Politics edited by Stephen White, Zvi Gitelman and Richard Sakwa, 6th edition, Chapter 8, p.131. 7

pluralism. The country may be torn between its « liberal project » for future, and its political culture : the regime has inherited corruption and « bureaucratic arbitrariness in politics and economy12 » from the past. And that is why the constitution remains to some extent a bit ambiguous, and far from the reality of the polity. Provisions concerning the process to amend this constitution give an impression of rigidity of the text. However, its content, at the opposite, is quite flexible since the personality of the President will stress its commitment to liberalism or its authoritarian elements.

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The purpose of this paper was to argue that the 1993 Russian constitution contained the most liberal principles and freedoms. Indeed, the individual liberties are guaranteed and freedom of speech, assembly, religion and property are especially highlighted. The constitution defends the universal application of the Rule of Law and recognizes the primacy of International Law. In brief, the constitution seems to implement liberal constitutionalism since it defines and limits powers of the executive branch. The separation of powers is enshrined even if it is unbalanced, in favour of the President who plays a central and absolutely fundamental role in the polity. And from an economical point of view, some provisions of the constitution even give a basis for a market economy.

If it is true that there are gaps and sometimes, ambiguities in the constitution, the introduction of a Constitutional Court is the ultimate evidence that the first post-Soviet constitution is far from being authoritarian, in spite of the authoritarian tradition of the Russian Federation. The challenge will consist in making respect of the provisions ensuring the independance of the Court and guaranteeing individual rights and liberties.

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Richard Sakwa, in Presidential Power : the struggle for hegemony. 8

Bibliography

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COLAS Dominique, Les constitutions de l’URSS et de la Russie, 1905-1993, QSJ, Presses Universitaires de France .

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NYSTEN-HAARALA Soili, Development of Constitutionalism and Federalism in Russia, International Institute for Applied Systems Analysis (IIAS), July 11, 2000.

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REMINGTON Thomas, Law-making and the separation of powers in Russia, January 28, 2001.

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RYZHKOV Vladimir, article in The St. Petersbourg Times, Tuesday, December 17, 2002.

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SAKWA Richard, Presidential Power : the struggle for hegemony (unpublished work).

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WEIGLE Marcia A., Russia’s liberal project : state society relations in the transition from Communism, Penn State Press.

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WHITE Stephen, GITELMAN Zvi and SAKWA Richard, Developments in Russian Politics, 6th edition, Palgrave Macmillan.

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ZAKARIA Fareed, « The rise of illiberal democracy », Foreign Affairs, November 1997, vol.76, n°6.

Websites

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http://www.carnegieendowment.org/

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http://venice.coe.int

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http://www.freedomhouse.org

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http://www.columbia.edu

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