The Russian model of separation of powers. Constitutional grounds and practical realization


Essay, 2020

10 Pages, Grade: 2,0


Excerpt

Table of contents

1. The role of separation of powers in the predecessor states of the Russian Federation
1.1. The Tsarist era
1.2. The Soviet era

2. The constitutional norms concerning the separation of powers
2.1. The 1993 constitution
2.2. The constitutional amendments in 2020

3. Practical handling of the separation of powers
3.1. Presidential power
3.2. Accountability of the Government
3.3. Role of other branches

4. Conclusion

References

The separation of powers, defined for the present work following the Britannica Encyclopedia as a division of the legislative, executive and judicial functions of government among separate and independent bodies1, is a principle of uttermost importance for modern democratic countries and its best possible implementation is the concern of political and legal science. As the constitution of the Russian Federation (CoRF)2 from 1993 states in Art. 1 (1) that the Russian Federation is a democratic state, it is interesting to analyze the realization of the separation of powers in Russia in two perspectives: in terms of the legal grounds and also concerning its practical realization. As the predecessor states of the Russian Federation weren’t democracies in the western sense of the term, this research can provide insights how the separation of powers principle is managed in a newly democratized state. Therefor first of all the role of separation of powers in the Russian Federations predecessor states will be analyzed, before the constitutional norms concerning the separation of powers will be investigated. In addition the practical handling of separation of powers in the Russian Federation will be discussed and it will be given a short Conclusion.

1. The role of separation of powers in the predecessor states of the Russian Federation

To analyze and understand the current situation and state of the principle of separation of powers in the Russian Federation it should be taken first of all a short glimpse at the historical evolution of this principle. Therefor the role of this precept will be analyzed in the Tsarist and Soviet Russia.

1.1. The Tsarist era

Although under the rule of Alexander I in 1809 there was a proposal by Speransky, a consultant of the Tsar, which envisaged a system with separation of powers, different levels of courts, elected legislative bodies and different levels of administrative agencies, a real system of separation of powers never came to existence during the Tsarist era. The attempt to restrict the autocratic power of the Tsar during the ruling of the last Tsar Nicholas II lead to the foundation of legislative bodies, but didn't change much concerning the nonexistence of separation of powers. Until the Bolshevik revolution the official principle of the Tsars autocratic ruling, the triad of Orthodoxy, Autocracy, and Nationality was incompatible with the principle of separation of powers.3 Sakwa draw out of this the conclusion that the famous sociologist Weber would have described the upcoming development of a parliament during the end of the tsarist era as sham constitutionalism, as it was not able to establish an accountable government and was instead intended to manage the democratic process in an authoritarian way and to ensure that the ‘popular sovereignty remains within controlled limits’.4

1.2. The Soviet era

In the Soviet era the communists saw the principle of separation of powers as a 'bourgeois fiction'. It didn't fit in the Soviet ideological system, as the Soviet state proclaimed to do everything in the exact and appropriate way for the wellbeing of the working people and because of that there was no theoretical need for separation of powers. In addition to that the Soviet Union was a one party state and even the theoretical anchorage of separation of powers in the Soviet Union would have harmed the totality pretension of the party. Because of that separation of powers was nonexistent in the Soviet Union.5

2. The constitutional norms concerning the separation of powers

To analyze the constitutional provisions of the Russian Federation for the concept of separation of powers there will be first of all an analysis of the provisions of the 1993 constitution. This is followed by an investigation how these provisions are effected by the constitutional amendments of 2020.

2.1. The 1993 constitution

Art. 3 (1) CoRF defines first of all the general bearer of power and the sole source of power in the Russian Federation as its multinational people. In addition to that Art. 3 (4) CoRF explains that nobody may usurp power and that if it is done, it is prosecuted under federal law. Art. 10 CoRF finally includes the general provision concerning the separation of powers and concludes that State power in the Russian Federation shall be exercised on the classical triad division of power by legislative, executive and judicial authority. Furthermore it explains that the bodies of those authorities should be independent. As Henderson argues, the word independent in Art. 10 CoRF should be translated however from the Russian version into English rather by ‘autonomous’ than by ‘independent’. She argues that this word would better fit the actual situation, as the different branches are not really independent, because the appointment to senior positions for example is regularly proceeded with the nomination by one branch of power and the confirmation by another one, which can be described as the ‘Russian checks and balances’.6

Art. 11 (1) CoRF defines in addition the authorities which participate in the horizontal separation of powers. These are the President of the Russian Federation, the Federal Assembly with its two legislative bodies, the Council of Federation and the State Duma, the Government of the Russian Federation and the courts of the Russian Federation. In this section it is not yet determined which authority belongs to which branch of power. Art. 11 (2) CoRF constitutes on the other hand a vertical separation of powers as it obliges that the state power in constituent entities of the Russian Federation shall be exercised by bodies of State government which are formed by those constituent entities. Concerning the division of power between the government bodies of the Russian Federation and those of the constituent entities it is obliged that its division of authority should be established by the constitution and federation treaties. Art. 12 CoRF constitutes in addition to that a third layer of public power, as it states that local self-government shall be recognized and guaranteed. Although it is obliged to be independent within the limit of its competences, it is stated that this layer is not a part of the official system of State government bodies.

Concerning a detailed breakdown of the constitutional state of separation of powers it is especially needed to examine the power of the President, as Russia is often called a ‘superpresidentialist’ system.7 As Art. 110 (1) CoRF states, executive power in the Russian Federation shall be exercised solely by the government of Russia. The second paragraph of this article states however, that the President is not part of the government, out of which follows, that the President is not part of the executive power. However it is obvious that he or her fulfills beside the control and coordination activities clearly also executive activities, if only because there is the ability following Art. 80 (4) CoRF to set the basic objectives of the internal and foreign policy of the state. This irregularity, the performance of tasks of the executive branch but the official non-affiliation to this power of the President, lead commentators of the constitution to the argument, that the President stands in a role of its own, which is not integrated in the triad of legislative, executive and judicial state power. However such an approach, as Henderson clearly shows, brings the problem that the President by acting inside his transferred competences by the constitution, still threatens the independence or at least the autonomy of the other power branches, which is actually guaranteed, as stated above, in Art. 10 CoRF.8

2.2. The constitutional amendments in 2020

The constitutional amendments of 2020, which were approved by the State Duma on 10 March 2020 and ruled constitutional by the Russian Constitutional Court on 16 March, were intended following the Russian government to strengthen the sovereignty and independence of Russia, as well as contribute to the improvement of the country’s political system.9 For the separation of power two main characteristics of the new amendments are important. Firstly as Teschendorf points out, with the new amendments the role of the president in an already presidential constitution will be strengthened, as the creation of a 'unified public power' will restrict local self-government and on the other hand the judges of the Constitutional Court can be recalled by the president through a suggestion to the Federation Council.10 As Gigitashvili states for a country like Russia with its oligarchical power structure the possibility to remove judges would lead to the removal of those who rule in an unfavorable way for the power elites and not the removal of judges who are objectively unfit for the office.11 Secondly the apparent strengthening of the role of the Duma through the confirmation of the whole government instead of only the Prime Minister, may make the parliament a little bit more interesting, however most likely doesn't make it more powerful. That is because the president will be able further on to dismiss the ministers and set the all government guidelines.12 Therefore the amendments can be rather seen as a consolidation than a separation of power.

3. Practical handling of the separation of powers

In the following finally the practical handling of the separation of powers will be analyzed concerning the presidential power, the governmental accountability and the power of the other branches.

3.1. Presidential power

A practical issue for the fulfillment and success of a real separation of powers is the lack of checks and balances in the Russian constitution. Firstly the direct accountability of the President to his electorates was extended to six years with the amendments to the constitution in 2008 and is compared to other democratic countries now quite a long time. Beside that the possibility of impeaching the acting President is very narrow. Following Art. 93 CoRF he can only be impeached on the basis of charges of high treason or of another grave crime and only with the participation of at least two thirds of the Federation Council and State Dumas deputies, which have to follow a complex procedure. Henderson argues that those requirements are irrational to fulfill in the actual political conditions as around 80 % of the Duma seats are filled with deputies supporting the President and also the Federation Council is filled with a huge amount of deputies which are directly dependent on the President, for example the representatives of the governors of the subjects.13

Weisman sees the problem for the separation of powers especially in the circumstance that the Russian constitution guarantees the President a role as actor of a 'superpresidentialism' through the provision to facilitate interaction among all the branches. This would give the possibility to interfere in the competences of the other state institutions. For example the President is allowed to take on a traditional judiciary role in dispute settling between different governmental bodies, as the President only 'may' refer such disputes to the courts. Concerning the executive power the President can in addition govern the country almost autonomous and hence block the influence of the government through the ability to enact decrees which only are supposed to not contradict the constitution or federal legislation.14 A limitation of the presidential power comes with the possibility of the Federal Assembly to enact laws and hence restrict the decree power of the President, as presidential decrees have to observe federal laws. However the President only needs one third of both chambers of the Federal Assembly to veto their legislation. This opens up an enormous legislation power for the President, which he can base even on a minority of the Federal assembly.15

[...]


1 Encyclopedia Britannica, 2020.

2 The following translation of the constitution from the Russian Constitutional Court is used: http://www.ksrf.ru/en/Info/LegalBases/ConstitutionRF/Pages/default.aspx.

3 Jane Henderson, 2011: 22, 26-30.

4 Richard Sakwa, 2008: 2.

5 Jane Henderson, 2011: 36.

6 Jane Henderson, 2011: 87.

7 Liliia Fedorovna Shevtsova and Mark H. Eckert, 2000: 36.

8 Jane Henderson, 2011: 108.

9 Givi Gigitashvili, 2020.

10 Peer Teschendorf, 2020.

11 Givi Gigitashvili, 2020.

12 Peer Teschendorf, 2020.

13 Jane Henderson, 2011: 138–139.

14 Amy J. Weisman, 1995: 1371–1375.

15 Amy J. Weisman, 1995: 1378–1380.

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Details

Title
The Russian model of separation of powers. Constitutional grounds and practical realization
Grade
2,0
Author
Year
2020
Pages
10
Catalog Number
V595346
ISBN (eBook)
9783346172105
ISBN (Book)
9783346172112
Language
English
Tags
Russland, Gewaltenteilung, Verfassung, Verfassungsänderung, Putin, Präsident, separation of powers, Russia, Constitution, Constitutional amendments
Quote paper
Florian Hertle (Author), 2020, The Russian model of separation of powers. Constitutional grounds and practical realization, Munich, GRIN Verlag, https://www.grin.com/document/595346

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