Shakir Yagudin - Head of the Legal Board of the State Council of the Republic of Tatarstan, Candidate of Sciences in Law
Problems of subsidiarity of Russian federalism on the example of the Republic of Tatarstan
Modern Russian federalism is a new, developing phenomenon, and thus it is open for perfection and operational development in view of accrued domestic and foreign experience. This thesis, which reflects one of the important aspects of subsidiarity, in our view is natural, obvious and indisputable. That is why from the position of scientific analysis it is impossible to agree with the argument that the existing pattern of Russian federalism is ideal for various and contrast conditions of Russia, that it is constant and that this pattern adequately reflects these conditions and cannot be corrected by political-legal practice, even by life itself.
Any pattern of federalism, including the Russian one, is worth something only if it serves the interests of the people, promotes their progress and prosperity. This aspect of subsidiarity, from our viewpoint, can be denied by few people, though there are also exceptions.
The constitution of the Russian Federation is the most important but not the only legal basis of Russian federalism. With reference to the subject of my report, it stipulates the basis of the constitutional system, reflecting an objective reality of the country, such as different levels of the subjects of the Federation, their various status and, naturally, status authorities. It also contains such basic and conventional principles of the construction of a federation, as the definition of the rights and freedom of a man as a maximum value; legal equality and self-determination of the people; the division of the terms of reference and authorities between the state power bodies of the Russian Federation and other agreements about the division of the terms of reference and authorities; the completeness of the state power of the subjects of the Russian Federation beyond the limits of jurisdiction of the Russian Federation and its authorities in the objects of joint jurisdiction with the subjects of the Federation; the acknowledgement and guarantees of local self-government etc.
It is important to emphasize that Article 5 of the Russian Constitution stipulates the fundamental provision of the status of the republic - its definition as a state. I would like to remind that the provisions of Chapter 1 of the Russian Constitution (Articles 1 - 16) constitute the foundations of the constitutional system of the Russian Federation and cannot be changed by the Federal Assembly and any other provisions of the Russian constitution cannot contradict these provisions.
The provision about a republic being a state is further developed in Part 1 of Article 66 of the Russian Constitution, which runs, that “ The status of a republic is defined by both the Russian and republican constitutions ”.
The above-mentioned constitutional provisions are major aspects of subsidiarity of the constitutional pattern of Russian federalism and their adequate, high-grade practical realization is a large and responsible task both of federal and republican public authorities.
As it was mentioned above, the status of a republic is defined both by the constitutions of Russia and the republic. I would like to draw your attention to the following: it is primarily, initially and equivalently defined by both constitutions: the federal and the republican. The republican constitution in this case ranks in one line with the federal. All aspects of the status of a republic adjusted by it in its own constitution with the exception of the federal constitutional regulation are exclusive authorities of the republic. There is one more important moment: in the constitutional provision under consideration there are no references to the federal acts and to the laws of the republics. The conclusions from here are as follows:
1. The status of a republic is a subject only of constitutional regulation and in this case extensive interpretation is not acceptable.
2. As republics are not the mirror reflection of each other, their constitutions fix particular, concrete aspects of the status of each national republic, hence, as a result we can have as many versions of the statutes of the republics as the number of the republics. Such approach considerably deepens our understanding of subsidiarity of the constitutional pattern of Russian federalism and brings the federation closer to the life of the people of our multinational country, both directly and on the constitutional basis.
Unfortunately in practice we can see other approaches to the realization of constitutional norms. It is at the stage of realization that the problems appear.
I will start from the decisions of the Constitutional Court of the Russian Federation on problems of federalism. From the point of view of the science of constitutional law, the legal position of the Constitutional Court of the Russian Federation in the questions of sovereignty of the republics, functioning of their state languages and other aspects of the constitutional-legal status of a republic, is considered as reproachable, not following the Russian constitution. From our point of view, the Honorary Court is so carried away by conjecturing the constitutional provision while understanding the meaning of the federal constitution that it involuntarily interferes in the sphere of action of the lawmaker. It is especially noticeable in the decisions of the Constitutional Court of the Russian Federation from 7 and 27 June 2000 on the question of the sovereignty of the republics.
Moreover the Constitutional Court commits distortions of the provisions of the Russian constitution and makes obvious legal mistakes. Thus, in the Definition from February 8, 2001 ¹ 15-0 on the petitioning of the Chairman of the Government of the Republic of Kareliya about the explanation of a number of the Russian Constitutional Court decrees it is said, I quote: “... According to Article 66 (Parts 1 and 2) of the Russian Constitution, the constitutional status of the subjects of the Russian Federation is defined by the Russian constitution and is rendered concretely in the constitutions of the subjects of the Russian Federation...” (underlined by us – S. Yagudin). As we see from this fragment of reproduction of the constitutional norm, the Constitutional Court, contrary to Article 66 of the Russian Constitution, does not leave the right to define their own status to the republics. Such erroneous approach was formulated by the Constitutional Court earlier in its decisions from 7 and 27 June 2000, in which it is affirmed that it is the Constitution of the Russian Federation that is the document defining the status of the subject of the Federation. As we were shown above, it is not.
The definition of the Constitutional Court from June 27, 2000 affirms in the Item 2.1, that by the Decree of the Constitutional Court of RSFSR (Russian Soviet Federative Socialist Republic) from March 13, 1992 the provision about the state sovereignty of the Republic of Tatarstan was recognized unconstitutional. At the same time this decision admits that the provisions on the state sovereignty of the Republic of Tatarstan are constitutional provided that Tatarstan is a member of RSFSR. I want to add that Tatarstan has never raised a question withdrawal from the membership of the Russian Federation.
The definition of the Constitutional Court of the Russian Federation from June 27, 2000 runs that “The acknowledgement of the sovereignty of the republics, considering that all other subjects of the Russian Federation do not possess it, would violate the constitutional legal equality of the subjects of the Russian Federation, would make its accomplishment principally not feasible, as the subject of the Russian Federation not possessing the sovereignty under the status cannot be equal to the sovereign state by its status ”.
One cannot agree with such a reason. The analysis of the constitutional norms in their interrelations results in other conclusions. So, acknowledgement in Article 68 of the Russian Constitution of the right of the republics to establish the state languages, meaning that other subjects are not endowed with this right, apparently does not match the principle of the constitutional legal equality of the subjects of the Russian Federation. However we think that the matter is different. The analysis shows that the principle of the constitutional legal equality of the subjects is not distributed on status authorities of the subjects.
In fact, the Constitution of the Russian Federation itself stipulates 6 types of subjects of the Russian Federation essentially different by their status. Thus, a republic is a state having its own constitution and citizenship; an independent district and an independent oblast their autonomy; Moscow and St.-Petersburg are cities of republican jurisdiction etc. In all the rest the subjects have really equal rights. Such perusal of the constitutional norm about legal equality of the subjects adequately reflects its contents and does not generate any problem. The republic is equal in rights with other subjects concerning the relations with federal public authorities as well as in the spheres of economics, welfare, state construction etc.
The absence of the indication on the sovereignty of a republic in the Russian constitution does not mean that the republic actually does not possess it. The sovereignty of a republic was and is fixed in its constitution. By and large, such constitutional stipulation is not necessary.
The state sovereignty is inherent to the republic, first of all, by virtue of its state nature. So, for example, in Article 1 of the Tatarstan Constitution it is established that the state sovereignty is the integral qualitative condition of the Republic of Tatarstan. The state sovereignty is an important constituent, intrinsic characteristic of the constitutional-legal status of Tatarstan, as well as of any other republic of Russia.
The state sovereignty of a republic is also an adequate state-legal mechanism of realization of the national sovereignty. So, Tatarstan is the form of state self-determination of the Tatar people.
The republic expresses the national sovereignty as well. Thus, the Tatarstan Constitution defines, that “ the sovereignty and the authorities of the state proceed from the people ”. Thus, the sovereignty of a nation and people in this case is adequately and most fully realized through the sovereign state, that is the Republic of Tatarstan. The state sovereignty of a republic is the mechanism of realization of the national and people sovereignty.
It is necessary always to bear in mind this important provision, as it is based on the fundamental international-legal norms professing that all the people have the right to self-determination, that by virtue of this right they freely establish their political status and freely secure their economic, social and cultural development, that all people can freely use their natural wealth and recourses to achieve their objectives, that no people at any rate can be deprived of the means of subsistence belonging to them.
The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural rights (from December 19, 1966), revealing the essence of the right of self-determination, invoke the states participating in these Covenants to encourage the accomplishment of the right of self-determination and to respect this right.
As the republic is not a separately existing state but rather a state in the state, then the nature of the sovereignty of such a state also changes to a certain degree. The sovereignty of the Republic of Russia is the supremacy, independence, responsibility and independence of its state power in the solution of questions of internal and external life in view of general federal provisions within the framework of division and delegation of state authorities.
In the Decree of the Constitutional Court of June 7, 2000 it is emphasized that the Constitution of the Russian Federation does not repute any sovereignty, except for the sovereignty of the Russian Federation. We should agree with that at the level of the Federation - yes, it does not repute the sovereignty similar to the sovereignty of the Russian Federation. But inside, within the framework of the Russian Federation, it is necessary to speak about the level of modifications of the state sovereignty, which the republic possesses. And if the division and delegation of authorities is conducted correctly, in the constitutional frameworks, considering all general federal provisions, than there is no reason to say that the sovereignty of a republic somehow limits the sovereignty of the Russian Federation.
As we see, a theoretically and constitutionally adequate decision of the Constitutional Court of the Russian Federation on one of the key questions of Russian federalism – the question of the sovereignty of a republic, as a state would most fruitfully promote the decision on problems of Russian federalism, of subsidiarity in particular, - would eliminate many problems in the sphere of bringing into line both the constitutions and legislation of the Russian Federation and the republics, including the Republic of Tatarstan, and would raise a slat of Russian federalism on an even higher level of democracy.
Both considered and other examples of the critical analysis of the legal positions of the Constitutional Court of the Russian Federation available in the scientific literature, suggest an idea of the necessity of conducting an all-round and deep scientific examination of the separate decisions of the Constitutional Court of the Russian Federation with the object of their constitutionality and possible subsequent reconsideration.
It is known that the decisions of the Constitutional Court of the Russian Federation are definitive and not subject to appeal. However it does not mean that they should be withdrawn from the scientific critical analysis. I repeat, it is impossible to agree with the one-sided judicial perusal of the Russian constitution on the subject of the sovereignty of a republic by the Constitutional Court of the Russian Federation. An adequate, from positions of not a unitary, but a really democratic federal state, perusal and interpretation of the provisions of the Russian Constitution about the constitutional-legal status of a republic, results in legal conclusions different from those formulated in the decisions of the Constitutional Court of the Russian Federation. In connection with what said above, one cannot exclude the possibility of the appeal of the citizens of the republics to the European Court of Human Rights on infringement of the constitutional rights of the peoples who have given a name to the republics, on the self-determination of sovereign national statehood in the forms chosen by them.
In this connection I cannot but reproduce one more aspect of the legal position of the Constitutional Court of the Russian Federation stated in its decisions from 7 and 27 June 2000, where it is said that the constitution of the Russian Federation binds the constitutional-legal status and authorities of the republics, in particular, not with their declaration of intent in the form of agreements, but rather with the declaration of intent of the multinational Russian people, who established the revived sovereign statehood of Russia, bringing into life the principle of legal equality and self-determination of the people. This provision is the obvious unitary approach.
Nearly always the division of the objects of jurisdiction and authorities between federal and, to put it so, “subject’s” state power bodies is realized by the federal acts. Among them are the Budgetary, Water, Forest Codes, Federal Acts on Earth Bowels, on general principles of organization of the local self-government in the Russian Federation, on environmental protection, on fauna and dozens of other laws. So, in Article 7 of the Federal Law “ On Fauna ” it is established, that “ According to the constitution of the Russian Federation division of authorities between the state power bodies of Russia and the subjects of the Russian Federation in the field of protection and use of the fauna and its habitat is defined by the present Federal Act ” It is evident that this provision contradicts Article 11 of the Russian Constitution, according to which such division is accomplished by the constitution of the Russian Federation, federative and other agreements about the division of the objects of jurisdiction and authorities. Unfortunately, the legislative practice of the Russian Federation has not followed the way specified by the Russian Constitution. Contrary to its unequivocal establishments, the federal center has suspended the practice of agreements, and its further realization was recognized inexpedient.
Such direction of the development of Russian federalism can hardly be named constitutional even if one tries to evaluate it in its interrelation with Articles 71, 72 and 76 of the Russian Constitution. This deviation from the Constitution is a direct way to unitarism that is to the actual change of the constitutional system of Russia.
Without agreements Russia is a unitary state as a matter of fact. The agreements on the division of the objects of jurisdiction and authorities, filling the constitutional gaps, have become one of the brightest manifestations of subsidiarity of Russian federalism. The solution of the questions of normative-legal embodiment of peculiarities and specific character of a separate subject, a republic in particular, coordinated between the Russian Federation and its subject, can find place in these agreements as in no other legal act. An evident example of this is the Agreement between the Russian Federation and the Republic of Tatarstan of February 15, 1994. It is the interstate agreement, the agreement not only about the division, but also about the mutual delegation of authorities, the agreement defining the character of mutual relations between the Russian Federation and the Republic of Tatarstan in supplement to the federal constitutional norms. According to the Agreement, the Republic of Tatarstan as a state is incorporated into the Russian Federation, the Constitution of the Russian Federation, the constitution of the Republic Tatarstan and the specified agreement etc.
It would be expedient to the federal center to reconsider its attitude to the contract practice, to renew the work of conciliatory commissions on these agreements and the commission by the President of the Russian Federation on the preparation of such agreements.
The federal acts defining both fundamentals (general principles) of the legal regulation and the federal acts aimed at the realization of authorities of federal power bodies are issued on questions defined by Article 72 of the Russian Constitution as the objects of joint jurisdiction of the Russian Federation and its subjects. In other respects, as well as beyond the limits of jurisdiction of the Russian Federation, according to Article 73 of the Russian Constitution, the subjects have all completeness of state power that is the republics as the states possess the state sovereignty.
Despite such precise constitutional formulas, the federal laws, as well as the bodies, interfere into the boundaries of the jurisdiction of the republics and under the guise of general principles regulate the most concrete questions of their state life. There are a great many examples of that. One of them is the Federal Law “ On General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation ”. The federal bodies are aware of the unconstitutionality of its many provisions, however they do not hurry to bring it into line with the Russian Constitution.
Thus the Clause 2 of Article 17 of the Federal Law “On General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation ” says that “ the highest official person of the subject of the Russian Federation is the head of the highest executive board of state power of the subject of the Russian Federation ”. In the given edition this norm of the federal law interferes into the regulation of questions of exclusive jurisdiction of the subject - establishment of the system of public authorities of the subject and the procedure of their interaction. It would be expedient to exclude this peremptory norm from the law at all or to change it to an alternative variant, having substituted the word “is the head of ” with “ can head ”.
Unjustifiable intrusion into the objects of jurisdiction of the subject are the provisions of Clauses 2 and 3 of the Article of this Federal Law fixing the range of questions which are regulated by the laws and decrees of the legislative body of the subject; the provisions of Article 6 - about the right to initiate legislation in the legislative body of the subject; the provisions of Article 7 - about the procedure of adoption of the normative legal acts by the legislative body of the subject; the provisions of Article 8 - about the order of publication and enforcement of the normative legal acts of the subject, the provision of Article 19 - about cases of the premature cessation of authorities of the highest official person of the subject; the provision of Article 23 - about basis of interaction of the legislative and executive bodies of the subject, etc.
This federal act has been under consideration of the Constitutional Court of the Russian Federation on inquiry of the Moscow City Council for more than a year. There has been no progress so far. Through the General prosecutor's office, federal courts literally strangle public authorities of the subjects, including those of the Republic of Tatarstan, demanding them to bring their laws in line this federal act, and this literally paralyses the work of the parliaments of the subjects.
In this regard the practice of federal legislation is far from subsidiarity.
Meanwhile the subjects, including the Republic of Tatarstan, could take advantage of the provision stated in Part 2 of Article 77 of the Federal Constitution, which says, that in case of a contravention between a federal act and a normative legal act of the subject of the Russian Federation on the questions of its own competency, the normative legal act of the subject of the Russian Federation is valid. I think that the legislative body of the subject could suspend the enforcement of the appropriate federal act or its separate provisions on its territory on the basis of Part 2 of Article 77 of the Russian Constitution. That would be a triumph of the principle of subsidiarity in Russian federalism.
There are a lot of problems connected with the functioning of the state languages in the republics, including the Republic of Tatarstan. The condition stated in the constitution of the Republic of Tatarstan that the Tatarstan President should know the state languages of the Republic does not contradict either the federal constitution, or the federal laws. On the contrary this norm is a legal guarantee of the realization in the Republic of Tatarstan of the common right “ to use the native language, to have a free choice of language of communication ” established by Article 26 of the Russian constitution.
The free choice of the language of communication means, in particular, the common right to communicate with the state figures and officials in the native language. As Tatarstan is a national republic, we are speaking, first of all, about the state languages of the republic established, what is more, according to the Constitution of the Russian Federation. Its Article 68 also alleges that in the state power bodies, bodies of local self-government, in the official bodies of the republics they are used alongside with the state language of the Russian Federation. Thus, according to the constitution of the Russian Federation, all state languages have the identical legal status in Tatarstan.
It is necessary to emphasize that the legislative condition that the President of the Republic of Tatarstan should know the state languages of the Republic of Tatarstan at the same time is his duty, corresponding to the common constitutional right on the free choice of the language of communication in a national republic and is the constitutional guarantee of this right.
All said above allows to make the conclusion that the creative, constitutional potential of subsidiarity of Russian federalism is rather significant and it is necessary only consistently to realize it in the name of its noble purposes and solution of the vital problems.
It is necessary to eliminate persistently the reasons constraining such realization. With this aim it is necessary to search and to find mutual understanding of the parties, using, first of all, conciliatory procedures up to the presidential ones using Article 85 of the Russian Constitution and scientific - practical forums similar to the today's conference. This is what the subsidiarity of the Russian federalism in action will be.
