Constitutional Reform as a Struggle for Power

Alexei K. Pushkov

(from The East European Constitutional Review, vol. 7, no. 4, 139-146;
published by NYU Law School)

On October 14, the Russian Duma voted on 5 out of the 33 proposed amendments to the Constitution drafted by the left-wing opposition. Had the proposals been accepted, they would have represented a modest first step toward a radical constitutional-reform process aimed at metamorphosing Russia from a presidential into a parliamentary republic. To be sure, any amendments to chapters 3?8 of the Constitution (which concern the federal system and the entire governing structure) must, after winning a supermajority in both houses of the legislature, be ratified by at least two-thirds of the subjects of the federation (Art. 136), an exceptionally high hurdle to overcome. This difficult amending formula, however, did little to deter the keyed-up proponents of constitutional change.

In the end, the five amendments in question failed to win the required 300 votes, although some came close. Anatoly Lukyanov, chairman of the Duma's Committee on Legislation and a leading Communist, exuded a calm and confident air. "We expected such a result," he announced after the vote, "but our efforts to introduce changes to the Constitution will continue, as will the protest actions that began on October 7." Lukyanov was referring to the massive anti-Yeltsin demonstrations organized by the trade unions and Communists that took place last October, attracting by some accounts more than 1.5 million people from all over Russia. Lukyanov's attempt to link the social protests with the Communists' campaign for constitutional reforms was no accident. The left-wing opposition considers both strategies--amending the Constitution and appealing to the street--essential for unseating Yeltsin and changing the nature of the Russian political system. The street slogan "Down with the President" is echoed by the motto of the Duma majority, "Down with Yeltsin's Constitution."

Legally, threats to change the Constitution are not particularly credible. Not only is revision very difficult to organize, but, at present, no political and/or social force is powerful enough to ram through such a change. It is difficult to imagine two-thirds of the 89 subjects of the federation agreeing on any common program, much less on a series of technically formulated constitutional amendments that seem only remotely related to local problems. The economically better-off regions, for one thing, have next to no interest in solving the crisis of power at the center. Not even the most fervent proponents of constitutional change, moreover, explain very well how the amendments being proposed will help the country solve its basic problems. Nevertheless, talk of changing the constitutional system is more widespread outside of Moscow than one might expect. As one moves farther away from the capital, not only are laws enforced with increasing selectivity, but the Constitution is progressively less known. With the August crisis in Moscow, however, some inhabitants of the countryside have suddenly become aware of their fundamental law and have even, to some extent, begun to see its relevance to their daily lives. The degree to which this impression holds true is impossible to measure; but the public outside Moscow seems to have finally grasped the need to reorganize the country's basic institutions more effectively than was done in 1993.

In 1992, in an effort to curtail Yeltsin's authority and seize some of his functions, the Supreme Soviet adopted more than 150 amendments to the previous Soviet Constitution. After this power grab by amendment failed, the Constitution was accepted in a referendum and entered into force on December 25, 1993. Now, five years later, Yeltsin is both politically and physically enfeebled, even as democratic Russia faces the deepest and most acute economic and social crisis of its short history. The demand for Yeltsin's resignation has therefore become, as one Russian politician put it, a national idea if not a national obsession.

On the same day, this past October, when the Duma was still considering amendments to the Constitution, the Federation Council (the upper house) also voted for a nonbinding but symbolic resolution calling on the president to resign immediately. Although the resolution failed, it fell only 11 votes short. Adjusting opportunistically to the spirit of the times, Yeltsin's administration tried to reach an informal agreement with the political establishment to allow him to serve out his term, which expires in the year 2000, no longer in the capacity of a full-fledged president but rather as some sort of British monarch, who reigns but does not rule.

But the left-wing opposition--defeated in 1993 and again in the presidential elections of 1996--as well as a larger Duma majority has been humiliated all too often by Yeltsin. As a consequence, it now thirsts for revenge. In August, the president's parliamentary enemies initiated an impeachment process against him. They are unlikely to succeed. Still, these accusations (for example, the claim that he permitted the dismemberment of the Soviet Union and launched the war in Chechnya) are extensively covered by the mass media and therefore erode whatever is left of Yeltsin's diminished authority. And while the organizers of the impeachment effort seek to damage Yeltsin personally, the process of amending the Constitution (or creating a new one) seems aimed at shattering the very institution of the presidency itself.

Emotions and historical reminiscences aside, the Communists are today guided by a cold political calculus. According to most analysts, a Communist Party candidate has no chance of winning the presidency. Communist Party leader Gennady Zyuganov's race against Yeltsin in the 1996 election suggested that a Communist candidate would hit a "ceiling" of electoral strength at about 35 to 40 percent of the vote. Numerous opinion polls conducted since then have confirmed that a Communist candidate for the presidency is almost certain to win a plurality in the first round but has little chance of crossing the majority threshold in the second. Once in the second round, the candidate would face a situation where the majority of voters would almost certainly rally around a non-Communist candidate out of fear of having Communists return again to power.

On the other hand, the Communist Party is almost certain to win a relatively strong majority in the Duma, at least as things now stand. While finishing third in 1993 with 11 percent of the ballot, the Communists made a spectacular comeback in 1995, winning more than 24 percent of the popular vote.

Thus if Russia were to become a parliamentary republic--with the head of government appointed by the Duma, the government itself largely assembled by the Duma, and with a figurehead president or no president at all--the left-wing opposition would in fact run the country. Governing authority would pass into the hands of the Communists.

"This is a political struggle," says Georgy Satarov, a former Yeltsin adviser, "and the Constitution is merely a tool in this struggle." While there is much truth in this assessment, it is incomplete. Not only the Communists and their allies but also the liberal Yabloko faction, headed by Grigory Yavlinsky, a popular reformer, support changes to the Constitution. Yabloko leaders are convinced that the present Constitution assigns too much power to the president and too little to the Duma. They prefer a strong presidency and a strong legislative branch in balance with each other. Supported by a number of leading Russian lawyers, they maintain that the present Constitution fails to strike the proper balance between the executive and legislative arms of government.

"The current Constitution is often called a superpresidential one," observes Viktor Sheinis, a leading member of the Yabloko faction. "In fact is it an 'underparliamentary' one. I strongly oppose attempts to turn Russia into a parliamentary republic. But the functions and the role now assigned to the parliament, and especially the State Duma, are clearly inadequate." An impressive case can be made that Russia requires a strong presidency. For one thing, it has the second-largest nuclear potential in the world and is still a military power to be reckoned with. Control over the military should be concentrated in responsible civilian hands. Russia is a huge country, a federation composed of 89 regions (Chechnya included). Twenty-one of these subjects are autonomous republics, with secessionist seeds deeply planted in the mentality of some non-Russian nationalities. The regionalization of Russia is growing and, in recent years, the regional powers have begun to question Moscow's authority.

Since August, several governors have vowed to go their own way, insulating their regional economies from the rest of the country. Abolishing the institution of the presidency, or reducing the chief of state to a figurehead, could contribute disastrously to an unstoppable chain reaction of disintegration--something in the interests of neither Russians nor their neighbors. Such a process would almost certainly exacerbate the destabilization of Eurasia.

Besides, Russia still lacks the key elements of a robust, well-organized, and stable civil society. Its political parties are underdeveloped and seem to exist principally to hoist their putative leaders into parliament and the government. The only genuine political party is the Communist Party, which inherited its organization and internal discipline from Soviet times. To be more accurate, the other "parties" represent movements (Yabloko) or political clubs (Our Home is Russia); so they are not parties at all.

Democratic self-government is either nonexistent or token, even though trompe l'oeil elections are regularly held. To a great extent, pseudodemocratic institutions are controlled by regional leaders whose authority more often than not resembles that of medieval feudal lords. Civic associations have only recently begun to develop. A large part of the electorate has no firm political orientation and swings whimsically between extremes, ranging from the ultranationalist Vladimir Zhirinovsky to General Alexander Lebed--the latter associated with the promise of an iron hand, a thought that appeals to many Russians.

Decapitation will not necessarily improve the current system of power. The introduction of a purely parliamentary republic into such an unstructured and unstable society could produce a power vacuum, anarchy, and, eventually, dictatorship. This does not mean that adjusting the present Constitution to upgrade the role and functions of the parliament is not an important task. Russia undoubtedly needs institutional change designed to foster legislative development.

Throughout Russian history, the state has been basically coextensive with the executive and nothing but the executive, while the legislative branch fulfilled a consultative, or sometimes only a decorative, role. From 1905 to 1913, the dumas convened under the czarist regime were in a continuous struggle for survival, often dismissed one after another by the government. The legislative bodies under Lenin, Stalin, and their successors were mere facades behind which the Communist Party and its leadership wielded power. The legislative function was reduced to a rubber-stamping of Politburo decisions.

Surprisingly to some, this autocratic tradition has resurfaced in Yeltsin's pseudodemocratic regime, although his Constitution did satisfy a number of superficial criteria for a political democracy. With Yeltsin in the Kremlin, Russian politics has for the most part evolved into a form of court politics. That is why Yeltsin himself has so often been compared with a czar. Strategic decisions have all too often been taken in close quarters by the president's inner circle. Yeltsin's excessive reliance on decree powers testifies to his failure to rule the country with and through the legislative branch.

With Yeltsin's physical decline, the "courtly" nature of his nominally democratic regime has become even more apparent. Following Yeltsin's protracted illness in late 1996, when he underwent heart surgery and was absent from the Kremlin for more than two months, "the family" seized a key role in politics. The influence of "the family"--comprising close Yeltsin relatives and his inner circle of advisers--was especially powerful when it came to important political appointments, such as the prime ministership. Since 1996, leading Russian business figures have lobbied "family" members for favorable decisions. It would be ludicrous to maintain that such a system, with its extreme concentration on the president and his intimate circle, its lack of transparency, its contempt for the legislative branch, and huge potential for corruption at the very top of the pyramid, adequately serves the cause of building Russian democracy.

Finding a balance The ongoing power struggle over the constitutional allocation of powers obscures the central challenge: the Constitution of 1993 needs to be changed to enhance its democratic potential, helping Russia achieve a more reasonable balance between the executive and the legislative branches of government. Admittedly, such a readjustment must be undertaken with trepidation and caution so as not to reignite a confrontation between the two main branches of government. Everyone understands that such a crisis of dual authority could degenerate into another bloody conflict on the streets of Moscow, with incalculable consequences.

Sensible constitutional reform in Russia is complicated by three key factors: the lack of a basic consensus among the main political actors on a desirable direction of economic and social development; the social and political instability accompanying Russia's tortuous transition from communism to a reasonably well-functioning modern society, whatever form it is to take; and, finally, the lack of legal and political traditions able to support the reliable functioning of the political system.

Since he assumed office, Yeltsin has habitually opted for collision, rather than cooperation, with the Duma. This choice was dictated partly by the lack of consultative traditions and partly by the extreme polarization of Russian political life today. For its part, the Duma has repeatedly tried to turn the Constitution into a launching pad for political attacks on the president and his authority.

One final point. Although introduced in 1991 for electoral reasons (Yeltsin needed support from a part of the electorate), the institution of a vice president was doomed from the start, as Yeltsin's acolytes did their best to strip the position of all significance and power. Anyway, how could the czar have a "vice czar"? As a result, then?vice president Alexander Rutskoi found himself marginalized and isolated from the chief executive. He became an easy recruit for the radical opposition and finally sided with the Supreme Soviet, in October 1993, in its attempt to seize power. When drafting the Constitution of 1993, Yeltsin decided to eliminate the office altogether, apparently in an attempt to prevent future disloyalty.

But the office of vice president should now be reintroduced into the Constitution. The reason is self-evident: the state of Yeltsin's health in the last three years has demonstrated conclusively that the Russian presidency needs a backup system, a safety net for emergency situations. Under the present arrangement, in the case of the president's death or permanent incapacitation, the prime minister would take over for three months, after which time a presidential election could be held. But the Constitution is totally silent about what to do if the president dies in the interim period between the dismissal of one prime minister and the appointment of the next. An amendment to the Constitution reintroducing the vice presidency would be the simplest solution--despite fears that such a move could prove destabilizing if the president and the vice president fell out and engaged in a struggle for power.

On November 6, in a statement published in Nezavisimaya Gazeta, the Council on Foreign and Defense Policy correctly remarks that "the demand for amendments to the Constitution is essentially political rather than juridical." Consisting of various prominent politicians, academics, and journalists, the council also opined that changing the balance of powers in favor of a parliamentary system was dangerous. But these strong opponents of pure parliamentarism nevertheless suggested that some amendments to the Constitution be made before the end of the year, and even supported the proposal to enlarge the constitutional role of the Duma to include more legislative control over the process of selecting the cabinet.

Alexei K. Pushkov is the author and anchor of Postscriptum, a weekly political television show, and a member of the Executive Board of the Russian Council on Foreign and Defense Policies. He is also a consultant to the Foreign Affairs Committee of the State Duma and a columnist at Nezavisimaya Gazeta.