Issues in the improvement of Russian federalism
The leitmotif of recent research conferences can be reduced to proving the statement that there are no truly federal relations in Russia. However, a decade-long experience of building federal relations should rather lead us to the conclusion that it is high time to rethink our previous ideas on the essence of federalism and its prospects in Russia.
It is now becoming obvious that Russia presented to the world its own model of federalism, which is a system of settled societal relations connected with the peculiarities of the country’s economic, political and social development as well as the mentality of the majority of its citizens.
In this connection we must mention several points of view on the current condition of and prospects for federal relations in Russia.
Correlation between the legal and political aspects of federalism and the problems of adaptation of the foreign experience of building federal systems
After rather fruitless discussions on forming a civil society and legal state in Russia, most researchers admitted the validity of an old thesis about the priority of politics over law. It is also obvious that there will be no changes in priorities in the nearest future. Therefore, it is senseless to continue opposing a “bad” federal center, that solves problems politically, and “good” regions, that prefer to deal with problems legally. However, it is just as wrong to say that the center vitally needs to regulate the details of federal relations just because subjects of the Federation are guided by the current state of affairs.
There are political roots at any base of the building of any state structure, including federalism. Thus, both the center and the regions are guided by political priorities, but both try to transform their political interests into concrete legal acts. The priority of politics over law has existed and will always exist, which is why the lawyer will continue servicing the politician instead of dictating optimal legal solutions of political problems. Preparation and discussion of “presidential” law projects on federal and local self-government reforms is a wonderful example of such servicing.
It is also high time to reevaluate the problem of borrowing foreign experience. This process largely follows two directions in our country. The first is to find (in our opinion) positive examples in foreign experience and declare them a panacea, a universal cure for all our problems. The “positive” foreign experience provokes animated social-political discussion, which leads to establishing new legal norms and institutions. However, it turns out in a short period of time that they do not work.
Such a state of affairs is usually caused by the lack of a systemic approach to the foreign experience. The formation of legal institutions which function effectively in developed Western democracies was taking place under totally different historical, political, economic, social-psychological and ethnic circumstances. Their transfer to the Russian circumstance usually causes the opposite effect. Such an approach is unproductive, primarily because of the territorial organization of public power. The attempts to borrow separate fragments of whole federal relations models that were successful in Western countries usually lead to the deterioration of the already unfavorable political and social-economic situation in Russia.
A somewhat different approach would be more productive with regard to the adaptation of foreign experience. To look for an alternative evaluation of foreign experience is to research the methods other countries used to solve their problems. Federalism should not be looked at as a set, static form of state organization; it should rather be seen as a method, as a way to solve certain problems of state building.
All of this leads to the conclusion that federalism, as shown by Western experiences, is not a universal solution for all internal political problems. Not all internal political problems can be solved through federalization of the state. For instance, ethnic and confessional problems are such that they are not directly connected with federal organization. There are many non-federal countries where such problems are solved successfully through other means and methods.
Great Britain – a classic unitary state, whose ethnic structure is very similar to that of Russia –is one example. All regions of the United Kingdom (Ireland, Wales, Scotland) are ethnic. Nonetheless, national problems are solved quite productively in the unitary Britain. Most Scots do not suffer from the fact that their regional legislation is under the Queen’s signature, while the Welsh are not concerned with the fact that the law on the Welsh language is adopted in Westminster. The desire to solve a problem and knowledge of the right level of public authority to deal with the problem in the best way are crucial for a developed civil society. The same can be said about inter-confessional relations.
It is now time to discard some widespread stereotypes of state building. One of those stereotypes is that federalism is almost the only guarantee of a state’s democracy. If we follow this logic, we will conclude that all unitary states are non-democratic, the only democracies being the federations. In such a case, we would have to admit that Great Britain, France and many other states are not democratic, which would obviously be far from reality. Federalism cannot “monopolize” the right to democracy; it is just one of its functions on the territories of vast states.
In this connection I would like to remember our experience before the 1917 Revolution. Many smaller ethnicities had a great deal of protection of their ethnic interests within the empire. It is not by accident that the Russian empire was formed with the help of smaller ethnicities joining it. Today we can observe how difficult it is for, say, Dagestan to solve ethnic problems within a federal state. The widely-circulated axiom that federal state is the only guarantee of democracy is false at its root.
Foreign experiences with devolution
If we can find the optimal variant of territorial power organization for Russia in the vast foreign experience, it would probably be the devolution processes that are on the way in Great Britain, Spain and a number of other states. This experience is much closer to Russia than the experience of federal state in Germany or America. Devolution is also not a panacea but a way or a method to solve state building problems.
If we look at the federal government’s decisions for the last two years from the position of devolution, we can already notice a number of obvious extremes. Federal interference ended up being non-functioning for the most part. There are well-known problems in the function of federal okrugs as well. A new significant bureaucratic layer vested with state powers is no less dangerous than separatism in some regions.
When discussing the problems of state building, it would be wrong to posit as opposing different forms of state organization (unitary vs. federal state) and the degree of centralization/decentralization in concrete states. Unitariness and decentralization, as well as federalism and centralization, are not mutually exclusive, antagonistic concepts. That is why it is difficult to agree with the statement that the federal center’s decisions are directed toward centralization and therefore lead to unitarism. As far as centralization goes, many traditionally federal states are well ahead of unitary states, which we can observe with the example of the USA, especially where the state and national interests are concerned.
The form of state organization is not directly connected with the degree of power and resource decentralization. We can again address the British unitary experience, in which there has been an attempt to unite two concepts - “unitarism” and “decentralization” (devolution). English researchers, trying to analyze the devolution process, sometimes talk about quasi-federation as a certain union of unitary and decentralist tendencies.
On the role of agreements in establishment of asymmetric federation
The admission of the country’s leaders that it was necessary to sign an agreement with the Chechen Republic was the natural conclusion to a 3-year-long discussion on the structure of relations between the two entities and again proved the correctness of constitutional norms.
The Constitution of the Russian Federation implies the existence of six types of federal subjects. The arguments on their varying legal status and on the asymmetrical nature of the Federation have continued for several years. Small Great Britain, again, has four types of relations between its center and regions. The agreement with Scotland differs from the agreements with Wales and Northern Ireland, while there are no agreements with England whatsoever. The relations with Scotland are widely devolutionary, while Wales follows a totally different framework, and what is permitted to Scotland is not permitted to Wales. The main thing is that everybody in both Scotland and Wales understands the structure of the relationship. The new regionalization process of “good old” England inevitably leads to a new type of relations that takes regional peculiarities into consideration.
It is strange that many national theoreticians and those who are building federalism cannot admit that Russia includes subjects with varying legal statuses. This difference is predetermined not by ethnic or confessional specifics but primarily by the differentiation of the regions along lines of socioeconomic development. Morality compels us to remediate the imperfections of Article 72 of the Constitution (spheres of joint authority) through the development of legal agreements.
It is necessary to use a principally new approach to the agreements themselves and to their place and role in the legal system of the country. It is necessary not to discard but to draw essentially different agreements. The criteria in this case should be exclusively economic factors. There exists a quite official “rating” of federal subjects’ economic development, and in 2002, there were two republics in the first 10 – Bashkortostan and Tatarstan. Number 10 is Perm region. Of course, the center will build completely different relations with these regions, than it will with the regions below number 70. For instance, republic of Mari El is in 71st place; therefore, the agreement between the Russian federation and the republic of Mari El should be totally different from those with Tatarstan, Bashkortostan or Perm’ region.
Thus, we see that the agreement with Tatarstan can be preserved and modified for the better because the republic has a colossal development potential. However, the same agreement cannot be drawn with another federal subject that is not only incapable of providing for itself but is unable to elaborate and adopt a full-fledged legal act. There should not be “typical agreements” between the center and the subjects of the Federation.
The “voluntary” enlargement of the regions is used to try to solve the regions’ unification problems. As we know, there exist several models of enlargement. However, the result of this action will be similar to the result of compelling the regions to discard the agreement practice.
The role of representative organs of federal subjects in the development of federal relations
The logic used to examine the contents of agreements usually leads to clarification of the question of the roles and authorities of the regional parliaments. The quality of legislative activity carried out by the Tatarstan state council, the legislative assemblies of Moscow, Tyumen, and Kemerovo regions, the Republic of Sakha, and the cities of Moscow and St. Petersburg cannot be compared with the work of representative organs of most federal subjects. The situation in Tatarstan, where prospective legislative enactments undergo a long, detailed and sometimes even research-based elaboration, is totally different from that in most regions, where laws are written by largely untrained people.
It is not by accident that the reasons that draft legislation from regions is declined at the federal level include, first of all, low quality of draft legislation, poor legal technique, lack of economic ground and non-urgency of the subjects of the proposed laws. The efficiency of regional participation in the federal legislative process varied from 1.5 to 2 percent at different times, and those percentages also include a dozen “advanced” regions. It is evident, then, that not so many regions have “grown up” enough to make “primary” legislation.
How should the center form its relations with the regions in regard to forming unified laws? It goes without saying that the approaches to the subjects of the Federation should be highly differentiated. The legal system may include several kinds of agreements. The federal center needs to agree with each federal subject not only on distribution of authorities, but, as it is the case in Britain, should also discuss the so-called “passed questions,” and the list of those “passed questions” will be different for every subject of the Federation.
When distributing authorities (it does not matter if it is within a federal or unitary state), it is always important to have a balanced approach and to consider the real abilities of the subjects to implement their powers. Spain, for instance, approaches devolution processes according to the principle “If you can handle local self-government – take it, if you can’t – don’t.” If Wales is not mature enough to have a full-fledged parliament, it will be content with a parliamentary assembly that deals with secondary legislation, while Scotland, truly capable of dealing with primary legislation, has a full-fledged representative organ.
Asymmetry in federal organization might also imply a model of relations between the center and the regions in which the Federation can include the relations of classic collateral subordination with certain regional subjects. If, for instance, the republic of Mari El cannot handle its powers and is not capable of being responsible for the well-being of its own people, it will be more appropriate for the center to relate to the republic on the basis of administrative subordination, as happens in a classic unitary state. In this case, agreements will only help secure statehood.
The current state of federal relations in Russia requires practical steps aimed at its fundamental modernization. However, we should not forget that Russian federalism is a national product. It will not and should not look like the American or German models. Understanding of the foreign experience is important only to produce an essentially new model of federal relations at the next stage of self-development, which the researchers will later call “the Russian model of federalism.”
* Evgueni Vladimirovich Pershin, Candidate of Science (history), second director of the Analytical Department of the Federation Council Apparatus, director of the department of state construction problems of Analytical department of the Federation Council Apparatus.