Clinging to democracy: assessing the Russian legislative-executive relationship under Boris Yeltsin's Constitution

Vanderbilt Journal of Transnational Law, May, 2000 by Ian Richard Brown

ABSTRACT

The 1993 Constitution of the Russian Federation has received harsh criticism as a document that confers strong powers upon the executive at the expense of a much weaker legislature. Such a disparity is understandable, as the Constitution was conceived out of the violent confrontation between President Boris Yeltsin and the rebellious communist-nationalist Duma in October 1993. Following the adoption of the Constitution in December 1993, many observers predicted a return to dictatorship in Russia.

Yet in practice, despite much heavy-handedness on the part of the president during the Yeltsin administration, the 1993 Constitution and the institutions it created have survived remarkably intact. The various governmental actors largely have followed the procedures of the Constitution, and perhaps most importantly, Yeltsin never employed the most striking provision at his disposal--dissolution of the legislature.

Nevertheless, critics and supporters alike have reason to be concerned with the current Russian Constitution. While under a generally pro-democratic and pro-Western Yeltsin, constitutional abuses were few, a different result could easily have resulted under a more vigorous executive.

This Note assesses the state of the Russian Constitution, as the country's leadership is handed over from the erratic yet familiar Boris Yeltsin to the firm yet enigmatic ex-KGB colonel Vladimir Putin. Beginning with a brief description of historical factors that affect the current Russian Constitution and Russian attitudes to the concept of the rule of law, this Note then examines the principal constitutional provisions at issue here, namely those concerning the relationship between the executive and the legislature. The Note then analyzes this relationship as it has developed in practice, particularly highlighting the two major confrontations of 1998. Lastly, this Note suggests avenues for constitutional amendment, in order to protect against executive excesses that may be more likely under a leader such as Putin, whose commitment to democracy and the rule of law remains questionable.

I. INTRODUCTION

Since the adoption of the Russian Constitution(1) in December 1993, many observers have noted its flawed attempt at separation of powers between the legislative and executive branches.(2) Although Russia's new leaders purport to be creating a democratic system, the vastly stronger powers delegated to the president at the expense of the legislature belie the principles behind such claims. Indeed, some have predicted that in such a system the president would abuse those powers, returning the country to a dictatorship.(3)

Yet despite this decided imbalance of powers among the three branches, Russia's government and Constitution have survived relatively intact during its first six years as a constitutional republic, even through economic collapse in 1998. Former President Boris Yeltsin, despite periodic economic and political crises, neither employed his power to dissolve the Duma nor declared a state of emergency.(4) Meanwhile, the legislature has survived three national elections, and despite its anti-reformist rhetoric, has passed much civil and commercial legislation.(5) In short, the executive and legislative branches have coexisted in relative peace(6) and have even shown brief signs of compromise and conciliation.

This Note will explain the legislative-executive relationship in the context of Russia's turbulent history of authoritarianism, offering both seeds of hope for the future of the new Constitution and suggestions for reform. While on paper the Constitution appears to allow the president much room for abuse, in practice he has been relatively restrained in his actions, and ultimately, the legislature has briefly even managed to wrest significant concessions from the president without resorting to force.(7) Nevertheless, there is reason to be cautious in measuring the success of the Constitution--with a more vigorous executive, a contrary result could easily have obtained. The accession of former Committee for State Security (KGB) colonel Vladimir Putin to the presidency raises serious questions about the future of Russia's fledgling constitutional institutions.(8)

Part II will examine the roots of the Russian Constitution, from both a long-term historical perspective, as well as in light of Russia's transition from communism, appreciating the progress the country has made given its essentially embryonic legal and constitutional consciousness. Part III will describe the distribution of powers at issue, focusing on the president's ability to dissolve the Duma and to declare a state of emergency and the Duma's inability to impeach the president. Part IV will analyze how the different branches have employed those powers in their dealings with one another, particularly in the context of their two showdowns in April and September of 1998. Part V will offer some thoughts on the future of the Constitution, suggesting that although the branches may be able to coexist in their current form, the potential for abuse and the need for amendments remain.