Political-legal resources of federalism in Russia
(instead of preface)
As of 2003, 10 years had passed since the adoption of the Russian Constitution, which still remains the primary legal guarantee of the development of federalism. In 1992, the Federal Treaty was signed, but it turned out to be a conjunctural and now forgotten document. Other laws passed by the State Duma undermine federalism rather than solidifying it. Therefore, from a legal viewpoint, there nothing more reliable than the Constitution has been designed, in spite of the fact that some of its articles introduce an element of collision into relations between the federal subjects and the center. This can be said with regard to the contradictions in Article 5 which, on the one hand, primarily describes different subject types, i.e. republics (states) with their own constitutions and consequences, following such status type, and regions, areas, cities, autonomous areas with statutes only; on the other hand, the same article proclaims the equality of these subjects. It would be more logical to give them a unified status from the very beginning, i.e. proclaim them all republics with constitutions and corresponding attributes. At a certain moment in time, such a self-proclamation process was begun (Sverdlovsk region was proclaimed the Ural Republic), but the experience was suspended by the center. Another suggestion to equate the subjects’ statuses through introducing provinces faced powerful reluctance in the republics. Generally, it is hard to imagine the procedure of liquidating the republics under democratic conditions, which is why the legal equalization of the subjects’ statuses can only be directed toward increasing the rights of regions and areas.
Article 72 on shared powers also contains many conflicts. The complexity of this article required the creation of a special commission by the President of Russia. The commission worked on neutralizing the accumulated contradictions, but as a result of adopting additional federal laws, shared powers turned out to be within the center’s exclusive area of competence. All recent legal steps of federal legislators were directed toward solidifying the center and the organs of self-government and weakening the subjects, which is not very compatible with federalism. As is well-known, in stable, classic federations, issues of self-government lie within the competency of the subjects themselves.
It would seem that the Constitutional Court would be the guarantee of execution of the Main Law, but the decisions of this organ, unfortunately, promote the opposite – defederalization. For instance, the principles of interaction between the center and the subjects are left at the federal lawmakers’ disposal, who by their will transfer them into the sphere of the center’s exclusive powers, even though there are some laws which it is unreasonable to work out in detail. For instance, the land law must be additionally elaborated in the subjects, depending on their climatic zones, since Russia has subtropics and tundra, territories with insufficient land (North Caucasus) and sparsely-populated areas in Siberia, the Black Earth region with good soil and marginal lands, etc. Due to the extreme variety in the country, it is very difficult to fit all the regions in the unified law. It is also very important to specify the notion of general principles which the center is responsible for and the sphere of regional lawmakers. One of the reasons for the agriculture crisis concerns the lack of freedom of action for local lawmakers. Tatarstan was the first in the country to adopt the most liberal laws on land ownership, but the authorities, tied by the provisions of the Federal Assembly, cannot complete the reform due to the lack of additional laws on the free purchase and sale of land. The Federal Assembly, on the other hand, does not adopt necessary laws itself and at the same time does not let the regions undertake such an initiative. As a result, the entire land reform in Russia ended up in a dead end.
In the sphere of shared powers, the federal lawmaker must be guided by general principles leaving the freedom of action to the federal subjects. However, the Constitutional Court let the federal lawmaker interpret the notion of general principles. As a result, every detail of laws is elaborated to the degree that they resemble a military statute specifying all minor details. In other words, the notion of general principles has lost its sense today. Federal laws regulate everything and everybody without taking into account regional specifics; therefore, the North East and Kaliningrad regions, as well as the tundra and subtropics, are regarded by analogy with the Moscow region.
In the situation in which the Constitutional Court cannot fulfill its function as arbiter and defender of federalism, issues in conflict become politicized and, therefore, can be solved only by political methods. Such a form of problem resolution is far from the best, even though it also has a right to exist.
In recent years, a general trend toward the unitarization of the state was felt, in particular, in the spheres of judicial structure, the arrangement of military structures and the formation of the country’s budget, and the federal lawmaker directly intruded in the sphere of the subjects’ exclusive jurisdiction. The most open case concerned the law on languages of the peoples of the Russian Federation, to which was introduced some amendments which provided for the state languages in the republics to use only the Cyrillic alphabet. The latter violated a number of articles of the Russian Constitution, as well as international norms, for instance, the European Framework Convention on Ethnic Minorities. The amendments were introduced in order to suspend the process of Latinizing the Tatar language, but at the same time, the center had raised a very sensitive issue. As a matter of fact, it attempted to withdraw the right of an ethnicity to use and develop its own language. The arguments used by the deputies of the State Duma were simply absurd: they considered the Latin alphabet to threaten the security of Russia and recorded this in the corresponding resolution. Some lawyers began to argue that the Latin alphabet violates human rights, which is no less absurd. It is a very dangerous precedent, as language is a highly politicized topic.
Hence, the federal legislator violated the people’s right to develop their own language independently and interfered in the sphere of the republic’s exclusive competence, thus disregarding international obligations undertaken by Russia in 1998. Tatarstan’s Constitutional Court expressed its position unambiguously in support of the republic’s interests; in other words, a “legal war” began on the issue of Latinizing the alphabet in which Tatar is written. Little hope is placed in the Russian judicial system, but the republic has the international court as its arbiter. The latter is an essential factor: it would be useless to start the judicial process without it.
The state language issue has a broader context as well. The Russian electoral law does not include a knowledge of state languages as a qualifying requirement for presidential candidates. In Tatarstan, however, they insist that the president of Tatarstan and, accordingly, presidential candidates must know two state languages of the republic, including Tatar. Thus, this issue gained a purely political character.
The Russian legal culture demonstrates itself in the resolution of such issues. The country may adopt laws contradicting the Constitution, while the Main Law itself, being a document of direct action after all, is not taken into account by judicial organs when they are passing judgment. The only thing that matters for the courts is federal law, even if it contradicts the Constitution.
Federalism has not become an element of the country’s political culture. Not only oppositional politicians, but also representatives of state structures may contest the federal structure of the state, openly suggesting a return to the centralization of power structures, while, according to the Constitution, they should be guards of federalism.
Russian President V.V. Putin started using the word “federalism” only recently. Earlier, he preferred the term “hierarchy of power,” which reflected his sympathies and concrete actions toward centralization of power. In his first Address to the Federal Assembly, he did not mention the word “federalism” even once. The word appeared in his following addresses but did not essentially carry any meaning. The State Duma totally forgot about the character of Russia’s state organization and acted as the parliament of a unitary state. This fact is anti-constitutional, but it is still a fact. It is not accidental that the press occasionally discusses the issue of revising the Constitution itself.
On the wave of disappointment with reforms and democracy, the term “hierarchy of power” could turn into an ideology of defederalization, but the practice of centralizing government structures faced the inefficiency of such system. The size of the state apparatus is steadily growing. Economic growth is mainly based on the high prices of oil and other kinds of natural resources, while the economic connections between subjects do not increase but rather decrease; i.e., the centralization of the hierarchy of power does not support the unity of the country; the number of poor regions increases. Corruption and crime rates do not decrease; military actions in Chechnya took a lot of power, material resources and human lives, but they did not neutralize the conflict. A further centralization of power will cause economic stagnation. It is obvious that a strong state cannot consist of weak subjects.
The idea of creating a strong Russia through the centralization of the state turned out to be erroneous. A strong Russia can emerge only through strengthening of the regions, but this simple and sound thought is taken by the center as a path toward the country’s collapse.
In order to discuss perspectives of federalism in Russia, one must know which forces support federalism and why.
Political parties are indifferent or object to federalism in their mass. Provisions on federalism appeared in the platform of “Edinaia Rossiia” (“United Russia” – translator) only after they had been suggested by Tatarstan President M. Shaimiev, one of the party’s leaders. “Partiia Rossiiskikh Regionov” (Party of Russian Regions – translator) also supports federalism, but it does not have serious political weight. Other parties do not consider it necessary to speak on the issue, or, like V. Zhirinovsky, openly support strict centralism and administrative repartition of the country.
Who is then the main propelling force of Russia’s federalization? Here, we have to address the history of the country. Russia was initially formed as a multiethnic and multireligious state, and in its home policy, ethnic variety was always taken into account. If we recall what Russia was like before the Revolution, we can call it an empire with elements of ethnic decentralization, sometimes very serious decentralization. It was not as unitary as it is portrayed today. Poland had its Sejm, Finland had not only its own parliament, but also its own currency and state language. Or, say, Bukhara and Khiva followed Shar’ia law. The strictest government was in the Volga region, and it was related to how that territory was conquered. It was in the Volga region where rebellion against the Russian expansion was the most bloody; therefore, restrictions were introduced in the spheres of housing, education for Muslims and a ban on Tatars and some other ethnicities practicing certain professions.
Fierce struggles in North Caucasus can be compared to those in the Volga region, but restrictions on rights were not as rigid there. As far as other peripheries of the empire go, they often were assimilated in a rather peaceful manner or voluntarily joined Russia. As a result, the government system there was formed taking into account the ethnic factor and the peculiarities of everyday life, language and religion.
After the Revolution, ethnic federalization of the country began, and it was an objective process. The Bolsheviks did not support the self-identification of ethnicities: they proclaimed that slogan only due to conjunctural reasons, and establishing the Soviet Federation was a compulsory measure for them, imposed by peoples who had just got rid of the dictates of an empire. When political scientists blame Bolsheviks for declaring the idea of peoples’ self-identification, they are virtually wrong. The Bolsheviks did not have another path. As soon as Stalin gained instruments of political control over society, federalism was reduced to a name. But the fact remains that since 1918, the federalization of Russia was taking place based on ethnic factors.
The Soviet federalism of 1936, although completely formal, still preserved the ethnic nature. In truth, there existed a unitary and authoritarian state. Nevertheless, a number of peoples even benefited from the Soviet regime. Peripheries were developing economically and socially in an accelerated tempo, national languages were taught at school, there existed colleges and research institutions of the Union republics. The Baltic republics lost a great deal, while the republics of Central Asia, on the contrary, received new stimuli for national development. As far as autonomous republics are concerned, we have to use a differentiated approach when evaluating them. Tatar institutes of cultural development, formed in the beginning of the 20th century, were practically demolished. There were left rare cultural oases, mostly in the republic itself. Some ethnicities (Chechens, Balkars, Crimean Tatars) were the victims of genocide, but a number of peoples were able to take steps forward in their development by gaining the status of autonomous republics. In any case, the autonomy status differed from the rights of administrative units and did not meet the fundamental needs of the ethnicities.
Perestroika again revived the national movements which then became the main leading forces in Union and autonomous republics. The most complicated conflicts were characterized as inter-ethnic and, finally, the collapse of the USSR took place after the ethnic principle.
Even a quick excursion in history demonstrates that the ethnic factor in Russia will always create prerequisites for specific relations between the center and the regions. There exists an opinion that Russia is one of the most multiethnic countries. This position is based on the proportions of Russians and other ethnicities (80% to 20%). However, this number should be corrected considering peoples’ dispersion on different territories. In such case, it will turn out that the shares of Russians and non-Russians are quite comparable, which creates a different political situation. Besides, the native peoples of Russia mostly reside on their historical territory, and their behavior differs significantly from that of migrants. Therefore, their political weight is much higher than their numbers. Demographic processes play not the smallest role in politics, too; and they go openly not in the Russians’ favor.
The ethnic factor is fundamental for Russia; it will inevitably be reflected upon all political processes. It is not accidental that the Constitution in its preamble declares the Main Law of the country on behalf of the multiethnic people of Russia. The more this principle is taken into consideration, the more stable the situation in the country will be.
In recent years, attempts were made to decrease the significance of the role of the ethnic factor. For instance, after the “parade of sovereignties” of the early 1990s, along with the republics (or maybe, as a counter to them), the status of federal subject was granted to such administrative units which, in their mass, were rather indifferent to the issue of federalization but actively supported equality of all subjects. Gradually, a number of regions-donors, as well as Moscow and St. Petersburg, began to realize themselves as real, rather than nominal subjects and became active supporters of the increased independence of regions. When V. Putin came to power, their level of activity noticeably decreased, but the trend remains to be objective in its nature.
If we try to somehow specify the forces standing for federalism these days, it would first of all be the republics and the ethnicities formed into ethnic-cultural autonomies. Some of them are active, some passive supporters of federalism. If we discuss the Tatars concretely, the tight tie of the republic with cultural-ethnic autonomy and the structures of Islam make them a quite tangible political force. We should still take into consideration the fact that the ethnicities have not practically used the potential of international law, which can promote democratization and federalization of the society.
Regions-donors remain as potential allies of federalization, since independence gives them an opportunity to raise the living standard of their populations. Sooner or later, the market economy will cause significant differentiation between regions along their level of development. The issue is strict: either all subjects will be equal in poverty, and the country will start being split into self-sufficient large regions, or the subjects will be given a chance to compete, which means different speeds of development. The European part of Russia will always develop faster than Siberia; those with natural resources to begin with will be advantaged; those with good universities will be the first to the finish line. Poor regions will benefit from equalizing and centralization, while the donor subjects will benefit from independence. There are only a few of the latter kind, but they are the ones that most influence the economy and often the politics of the country.
Democratic forces, though in an unobvious manner, are nevertheless an objective resource of federalization. This is connected with the peculiarities of the transition period in Russia, when federalism also fulfilled the function of a territorial frame for democracy. All earlier mentions that the republics’ sovereignty was needed only to preserve the Communist Party nomenklatura and counteract democratic changes are irrelevant today. Federalism and democracy cross in many issues. The opposite is also true: while democracy is preserved in Russia, it will be difficult to bring the country back to a unitary organization, since most republics do not have an alternative to federalism.
Since the 1990s, there have existed proactive federal subjects which supported federalization. First of all, they included the largest republics: Tatarstan, Bashkortostan, Yakutia, the cities of Moscow and St. Petersburg, Sverdlovsk region, Ingushetia and Kabardino-Balkaria in the North Caucasus. Other subjects did not have sufficient economic or political weight but often joined the former in voting on certain issues. The movement “Otechestvo – Vsia Rossiia” (“Motherland – the whole Russia” – translator) was formed by those subjects. Since 2000, this “front” began to disintegrate, and ultimately, Tatarstan was left alone with its position which did not accept the discussions of “centralized federation” or “governed democracy.” Certainly, Tatarstan also had to yield a number of points in the economic sphere, having lost a part of its tax revenues to the benefit of the center. Nevertheless, its position remained unchanged regarding a number of issues concerning the republic’s status.
The most rigid opposition takes place with regard to the issue of Tatarstan’s sovereignty, which has been recorded in the Constitution of the Republic of Tatarstan and supported by the referendum of 1992. According to the Constitution of the Republic of Tatarstan, “the sovereignty of the Republic of Tatarstan is expressed through possessing full state authority (legislative, executive and judicial) beyond the exclusive powers of the Russian Federation and shared powers of the Russian Federation and the Republic of Tatarstan and remains an inviolable condition of the Republic of Tatarstan.” It is obvious that such a formulation is borrowed from article 73 of Constitution of the Russian Federation and cannot cause protest from lawyers. The fact that the term “sovereignty of republic” is rejected today should be attributed to the sphere of political caprice or the demonstration of an instinct toward empire. Such an understanding of sovereignty does not destroy Russia; it also is a norm from the viewpoint of the international experience. For instance, in the Constitution of Switzerland, an exemplary, classic federation, it is recorded: “Cantons are sovereign thus far as far as their sovereignty is not restricted by the Federal Constitution.” Nevertheless, the Constitutional Court of the Russian Federation made a decision rejecting the sovereignty of republics, even though they are considered to be states. At the same time, according to the Constitution of the Republic of Tatarstan, Article 1 formulating the republic’s sovereignty can be altered only through referendum. It is obvious and understood well by the center that the second referendum will strengthen, rather than weaken, the republic’s position. Thus, two political wills confront each other on this issue, the issue thus going beyond legal decisions.
Tatarstan’s point of view is based on the universally recognized conception that federations are built upon shared sovereignty. Moreover, the Agreement between the Republic of Tatarstan and the Russian Federation of 1994 recognizes two sources of law: those of the people of Russia and the people of Tatarstan and, respectively, the sovereignty of Russia and the sovereignty of Tatarstan. The agreement neutralized political and legal collision, creating stability in the republic and in its relations with the center.
Many predicted that the sovereign Tatarstan would collapse Russia. It turned out to be the other way around. We can affirm now that it was Tatarstan that expanded the sense and meaning of the concept of federalism for a multiethnic Russia, having made the concept of federalism exclusively positive.
These days, it is considered to be good form to diminish the role of the practice of agreements. A number of subjects abandoned their agreements for market reasons, the same reason those agreements were drawn in the first place. There emerges the natural question: how necessary are the agreements under conditions in which federal laws map out everything and everybody? It would probably be appropriate to refer to the experience of other countries, like Spain, which, like Russia, is also currently positioned at the stage of the transformation of its state structures. Even though Spain has not declared itself a federation, there takes place a devolution there which is very similar to Russian decentralization processes. Madrid first drew agreements with separate provinces, and then, based on them, adopted the law on autonomous communities. In Russia, it was done the other way around, the agreements having first been drawn up and then the adoption of laws against them having taken place. From a political viewpoint, this is a harmful step which causes the country’s destabilization and does not create any stimuli for socioeconomic development.
The practice of agreements is a model of stable relations, since the very fact of signing an agreement means that positions have been coordinated, and a field of common interests has emerged. It sometimes seems that it is easier to dictate from above, but it is necessary to have a corresponding resource for that and, besides, it is not always the most effective system of government.
The size and variety of the country in economic, climatic, and ethnic aspects make it impractical to regulate everything by unified laws. It is impossible to unify and take into account all peculiarities of the regions under certain conditions. Of course, it is possible to adopt a federal law just for the Kaliningrad region, but it is easier and more effective to do it through a bilateral agreement.
In connection with the regulation of the Chechen conflict, there was adopted the Constitution of Chechnya which declared Chechnya a sovereign republic, or in other words, used the approach of Tatarstan. But in that case it is necessary to “interpret” the decision of the Constitutional Court that republics of the Russian Federation cannot be sovereign. One of the possible variants is to understand the sovereignty of Russia as absolute, full, indivisible in international affairs, but divisible in accordance with shared powers where internal relations between the center and the subjects are concerned.
The second important issue connected with regulating the Chechen conflict is the preparation of the agreement. It is quite an exemplary step, since until now the center insisted on liquidating the practice of agreements. The example of Chechnya demonstrates that it is too early to discard the agreement practice from the political inventory. Moreover, agreement-based relations may become one of the stimuli for the further federalization of Russia.
Federalism is impossible without a social contract, be it a Constitution, Federal Agreement or separate bilateral agreements.
* Rafael Sibgatovich Khakimov, Candidate of Science (philosophy), director of scientific programs of Kazan Institute of Federalism, director of History Institute of the Academy of Sciences of the Republic of Tatarstan.