Milena Gligich-Zolotareva - Candidate of Sciences in Law; Adviser for the State Organization Department, Information/Analytical Administration, the Federation Council Office; Research Assistant at the Institute for the State and Law of the Russian Academy of Sciences, and at the Institute for the Economy of the Russian Academy of Sciences
Topical Problems to Modernise the Federal Structure of Russia (legal aspects)
The experience of state building in the last decade revealed a number of serious problems, connected with the effectiveness of public power and stability of the state. The legislative initiatives of the Russian President, aimed at strengthening the state, evoked a disputable reaction and justified criticism, because of the absence of a single concept concerning the perfection of the state structure. Simultaneously several reforms, that touch the main spheres of state and public life, are carried out (federal, administrative, judicial, legal, land, labor, pension, communal, tax, reform of political parties, electoral system, reform of rail transport, gas branch, power engineering are among them, and it is not the entire list), but still they turn out to be rather superficial and contradictory.
This state of affairs is a natural result of Russia’s development, whose federal, democratic and legal character was always described with the increased degree of virtuality.
The incline towards strengthening the centralization and even unitarization of state structure, that is so disturbing today for many people, is nothing else than an immature fruit from the reformation tree. The objective uselessness of this fruit is by no means evidence of its primordial rottenness, since the limited strengthening of centralization in present-day conditions can turn out to be rather useful, and the reasonable centralization of power can have a salutary effect on the perspectives of development not only of federalism, but of the Russian state system as a whole. In that sense centralization can be regarded as the tactics, but in no circumstances as the strategy of building a state, since the history has already shown that the building of extensive centralized states had completely exhausted itself. How many times can we tread on the same “rake”, trying again to reconstitute Russia as the unitary centralized state, and again completely ignoring the lessons given to us by the experience of state building in the 20th century, especially as it requires enormous resources that are unfortunately absent today? Federalism is the only way for Russia to develop within the limits of a democratic legal state system, since unitarism signifies the return to the old and ineffective methods of administration that had already exhausted themselves.
Unfortunately we must verify that the tactical nature of strengthening the state is not always taken into account in the process of assumption of authoritative decisions. The attempts to build ‘strong walls’ of state system on the ‘marshy’ social economic soil practically without any foundation seem to be rather suspicious. The conception of strengthening the vertical line of power is frequently taken as a universal panacea, though in actual fact its resource is rather limited from the point of view of future development. As a result the benefit as well as the harm of unitarism that is supposedly drawing to Russia are to a great extent exaggerated – seeing the content signs, the centralization is gaining more and more decorative character. Let us now turn to several examples of its reflection in different spheres of state and social life.
THE INSTITUTION OF FEDERAL INTERFERENCE
This institution recently appeared in Russia, with the bringing of some changes and additions to the Federal Law ‘On Common Principles of Organization of Legislative (Representative) and Executive Organs of State Power of the Subjects of the Russian Federation”. The establishment of federal interference undoubtedly bear a positive character. But what do we have in the upshot? The same situation we had before its establishment – the system of public power in the federal center and the local government are build asymmetrically, the organs of state power, its branches and levels possess such a complex of rights and responsibilities that they are unable to guarantee the balance of the system of power. The substitute, that is illegal forms of amenability are widely distributed as before. The establishment of sanctions for the violation of the Constitution and the legislation of the Russian Federation by the organs of state power of the subjects of the Federation and by the organs of local government is only one element of the system of amenability, that would not bring the effect expected without establishing the analogous responsibility on the federal level.
But still we should not exaggerate the danger of such approach to the federal interference. The practice has shown that the given institution in its present form is very cumbersome, difficult in practice, and that it would be much easier to dismiss the head of the region by means of one telephone call (as it was in Primorie), or applying the shady electoral technologies. The federal interference today is not a factor of unitarization, but to a great extent the decorative legal institution that has practically no influence on the process of state building. This state of affairs can be harmful not only for federalism, but for the very doctrine of legal state, but it is another matter.
THE STRENGTHENING OF THE PRESIDENT`S POWER
Re-distribution of plenary powers overturned (upset) the system of restraints and counterbalances, which was meticulously functioning before in the vertical line, as well as in the horizontal one. The disproportionate growth (rise) of president’s powers at the background of a considerable number of rights already conceded to the President by the Constitution, gradually leads to the removal of political resources of other branches of power in favor of the President’s one and to the misbalance in the system of the division of powers. But again one should not ‘demonize’ the President’s power. Nowadays Russia does not possess the resources needed for the reproduction of totalitarian and unitary models of state system that existed in the Soviet Union. Thus, we can rely on the stability and all-embracing character of the autocratic power.
THE PERSPECTIVES OF JUDICIAL REFORM
It is obvious that the strong and effectively functioning judicial system is needed for strengthening the state. But still the facts give the evidence of the opposite – the federal judicial system is in a sad state (in a sorry plight), material technical equipment of the courts leaves much to be desired, the majority of judges are in the unstable position of “acting judges”, which hardly assists their independence. The existing judicial system can hardly guarantee justice and at the same time provide the integrity of the state. The society, for a very long time and rather strongly, feels the necessity to reform the judicial system, which would allow it to draw nearer to the world standards of justice, and by no means to manipulate the judicial system in order to achieve the juncture political interests – in this way any, even the most stable state system can be more likely collapse than get strengthened.
The judicial reform has already started. The State Duma considers within its limits 11 bills, that were brought in by the President of the Russian Federation, and among which one can find a bill of judge’s status, a bill of barrister’s activity, etc. Besides the direct relation to the question discussed bears the continuing process reform, and in particular, the new criminal code, accepted by Duma. The documents mentioned provoke the well-founded disputable reaction in the society. On the one hand, nobody denies the necessity of the judicial reform but, on the other, no one knows if the measures to increase the control over courts and judges which are suggested in those bills can really improve the uneasy situation prevailing in this sphere.
Why did the President’s bill disturb the Judge’s Association so much? The main direction of the reforms attracts much attention, namely strengthening of the president’s control over the realization of justice in Russia. First of all, it is expressed in the aspiration to dilute the organs of the Judge’s Association (the Bar) with the representatives of the president, and also with other people who have no relation to the realization of justice, but who one way or another are under control of the executive (president’s) branch of power. The violation of the principle of the division of powers is obvious, since the Bar has the state authoritative powers, including the ones connected with the election of the chairmen of the courts that, according to the new rules, are gradually converted into officials, wholly dependent from the executive power. In the same course, the reduction of the working period of chairmen is proposed (in the Supreme Court – to 10 years, in the courts of the subjects of the Russian Federation – to 7 years, in the regional courts – to 5 years). And the control over the chairmen of the courts is the control over the process of appointment of the same 60-80 % of ‘acting judges’.
It is difficult to say how positively the measures proposed can influence the quality of the exercise of justice, but such reformation is hardly able to improve the situation in this sphere of public relations. In this connection the following fact is worth mentioning, that the moratorium on the so-called legal arrest is preserved in Russia up to year 2004, and with no doubt it is in contradiction with the norms of the clause 22 of the Constitution of the Russian Federation. Thus, one should not wait for some special improvements in the process plan as well. The reason of the suspicious, and at times of the malevolent attitude of judges and of the general public towards the judicial reform is hidden in the mentioned oversights of its authors, isn’t it?
THE REFORM OF THE LEGISLATION OF POLITICAL PARTIES.
The reform of the legislation of political parties is passing in an extremely contradictory way. Its direction is absolutely clear today, that is the creation of the one and a half party system. The State Duma has already passed an appropriate Federal Law “On Political Parties” in the third reading. There is no need to prove again the viciousness of such construction for the democratic bases of the native state system – in the conditions of the undeveloped civil society it can turn out to be a return to the traditions of the Soviet Union, where the rejection of political pluralism and of the multiparty system had automatically led to the actual rejection of federalism with the formal preservation of the given institution. Is it possible for such a party system to have a firm (stable) character? No, it is not, because the inevitable change of the political vector of power will destroy the artificially made party-system and will create the new one, which will adequately reflect the real spectrum of public powers and interests.
THE REFORM OF THE FEDERAL COUNCIL
The change in the order of organization of the Federal Council has so much discredited the new model of representation of the subjects of the Federation in the upper chamber of the Russian parliament, that it is rather hard today to attach any great importance to its activity. The so-called ‘Moscow functionaries’, who hardly defend local interests, are frequently becoming new members of the upper chamber. At this background quite natural seem to be the conversations about the necessity of abolition of the Federal Council and about the transition to the single-chamber parliamentarism, that is absolutely inadmissible for a federal state. Today the upper chamber remained practically unemployed, since the list of proxies given to the Federal Council is rather narrow (the former senators, who came to Moscow once a month, managed with it rather successfully), and as a result the renewed membership of the chamber is hardly able to defend the independent and authoritative position in the sphere of perfection of federal relations, no matter what questions concerning the nature of its representation would arise.
The question of the ‘third term'
The given conflict is the bright evidence that shows the predominance of narrow and purely juncture interests in the power over the conceptual ideas about the future of the Russian state system. In the beginning the ‘third term’ was literally ‘broken through’ the State Duma without taking into account the common democratic ideas about the legitimate rotation of the elite in power, and also the principle of differentiation of competencies between the Federation and its subjects; later, when the ‘Moor (that is those heads of regions, who have already played their roles) can go away’, the question about the abolition of the ‘third term’ is bound to arise, and again with the violation of all possible norms and principles; as time goes on, by means of lobby agreements the problem of the ‘third term’ is at last taken off the agenda. This state of affairs by no means can be called federalism, or even unitarism, and in general it can hardly be considered within the limits of the processes of state building.
THE PROBLEMS OF STRENGTHENING THE VERTICAL LINE OF POWER
Recently much is said about the unity of the system of power, about strengthening the authoritative vertical line. To achieve this good goal even the fundamental democratic values are sometimes called in question. So what does the given legal construction represent in actual fact? Possibly it represents two approaches to the understanding of the nature of the united system of the executive power that sprang from the twofold understanding of the very term ‘unity’:
· unity as the strict subordination of the lower organs of executive power to the upper ones, and, accordingly, the supremacy of the principle of appointment;
· unity as the unity of goals and principles of activity of the organs of executive power at all levels.
To all appearances, the first version of the interpretation of the principle of unity is widespread in authoritative structures, and this can be very misleading. Let us remember the recent Soviet and Russian experience: the appointment of the leadership of united republics from the center did not hamper, but even assisted the breakdown of the Soviet Union; the appointment of the leaders of the subjects of the Federation nearly ended with the collapse of Russia (it is sufficient to remember Djohar Dudaev - one of the most impressive (outstanding, bright) appointees of that period). The appointment and administrative subordination not only fail in strengthening the notorious ‘vertical line of power’, the very federalism, but, on the contrary, lead to their inevitable and forthcoming destruction.
Thus, practically all the factors discussed do not work to the transformation of Russia into an unitary state. In this connection the following question is bound to arise – should we be so frightened of unitarism? Is it possible that Russia simply is not able to become again the unitary centralized state because of objective reasons, and any authoritative attempts in the given direction will lead exclusively to the socio-political non-stability in the society and even (in the most grievous development of the events) to the collapse of the country, but in no way to its unitarization? Maybe should we think not only about the information given to us by the official propaganda, but about the facts it keeps in silence, about those consequences of decorative centralization which sooner or later would become known?
The history of the Federation in Russia is a pendulum-like process. The change of the vectors of development is conditioned in it by the specific combination of centrifugal and centripetal tendencies of state system, because despite the variety of models of federal states, the dynamics of its development is reduced in the end to the fragile balance between the two ‘extreme’ (wing) forms of state structure: confederation, that is the break-up on the practically sovereign territories, and unitary centralized state, that embodied in itself the deep trends of state building, those Scylla and Charybdis, who send to the bottom more than one generation of federalists.
In this connection appears the problem of reception of foreign experience – which seems to be a rather difficult and contradictory process, full of many ‘under-water rocks’. Let us take as an example such a developed democratic country as Austria, whose federal structure is not loaded any more with the problem of maintenance of democratic bases of state system to such an extent, that if one day the question of unitarism would rise, the Austrian democracy would not incur any significant losses. Indirectly this is proved by the fact that within the limits of the Bundesrat’s work the proper interests of the Länder are put on the back burner, giving up their place to the further development of the party system, to the party clubs, and so on. The main obligation to guarantee the balance of the system lies exactly in the sphere of activity of political parties, and this fact is also proved by the significance which acquire personal characteristics of party leadership – it is a well-known fact that recently Austria has attracted the attention of the international community because of careless (indiscreet) statements (declaration) of one of the party leaders. We can imagine the refraction the Austrian experience of federalism would have in Russia: taking into account the permanent weakness of the Russian party system, the transposition of the heaviness of the democratic reforms on her ‘fragile shoulders’ can end with the total (absolute, full) crash (failure) of Russian parliamentarism, since the party in power invested with enormous authorities would not adequately represent the Russian people, and this fact would lead to the increased authoritarianism of power with all following consequences.
It is obvious that the problems of building the federalism in Russia are by no means the structural problems of federalism itself, but rather the reflection of the more deep-laid processes that occur (go on) in the Russian society. The foregoing description however does not stand for the refusal of the reception of the foreign experience of federalism, especially as the Russian experience in that sphere is obviously not sufficient. The foreign experience should be taken into account in the process of modernization of the Russian Federation, but this should be done very carefully (cautiously), without blind and very frequently formalistic copying of the alien legal constructions.
The present-day heel of the Federation over strengthening the centralization is the process that was predetermined by the preceding development. The most important thing is not to allow spreading of the negative factors of centralization, so that the inevitable ‘wave’ of chaos that follows it would not have the destructive influence on the perspectives of the development of the Russian state system that we could clearly observe in the last decade of the XX century. And if the future of the Federation is concerned, it is possibly not very clear, as however, the future of the state system itself: Russia will either be a Federation (and democratic legal state at the same time), or it will turn into some post-Russian territory (space). Tercium non datur.
