separation of power

The Russian constitution and separation of power

Elena Meleshkina

Issues

• Constitutional crisis and adoption of the Russian constitution;

• Separation of power and types of republics;

• Separation of power in the Russian Federation;

Constitutional crisis

After the disintegration of the Soviet Union Russia did not get its own constitution. The Soviet Constitution of 1978 was being used. Only in December 1993 new constitution was enacted.

The constitution was adopted as one of the results of political crisis 1992-1993 while presidential executive and legislative branches straggling for the domination.


A referendum in April, 1993. The key question of the referendum: “Do you have confidence in Boris Yeltsin, the President of Russia?”

58.7% of voters expressed their confidence in Yeltsin.

The Constitutional Court decreed that a majority of voters voicing support for Yeltsin would have no “legal significance” and therefore would not make any legal changes to the constitution.


Yeltsin proclaimed: “the Russian Soviet Federation Socialist Republic has been peacefully replaced by the Russian Federation. The state has changed its legal identity.”

One of Yeltsin’s constitutional aides: Congress could no longer legally remove the President from his post, force the government to resign, or adopt a new constitution, "the president and the government received a vote of confidence in the referendum. They will conduct the economic reforms on the basis of their own decisions".


• In April 1993 Boris Yeltsin presented his draft of the constitution.

• In May Yeltsin Yeltsin convened an extralegal Constituent assembly to represent the will of the people finalize a draft for a new constitution in June: "it seems to me that the Constitutional assembly can be transferred into a Federation Council and will be one of the houses of parliament".

• The Constitutional Committee of the Congress of People's Deputies decided to present its own draft of the constitution.

• The Supreme Soviet immediately rejected the Yeltsin constituent assembly's draft and declared that the Congress of People‘s Deputies was the supreme lawmaking body and would decide on the new constitution.


Ministry of Justice: although the President "acted beyond the formal legal framework, he acted in accordance with the constitutional principles of government by the people, insurance of the country’s security and protection of the rights and lawful interests of citizens... although, as a formal matter, he exceeded his powers, he used this violation, not to usurp power but to protect the will of the people".

Yeltsin: "Only by relying on the will of the people, we can strengthen Russian statehood and overcome the legacy of the Communist and Soviet past and the consequences of dual power".

Adoption of the Constitution

In October 1993, after the siege of the Parliament Yeltsin decreed that both houses of parliament would be elected and a referendum on new constitution would be held in December.

On 12 December 1993 Russian constitutional referendum confirmed the Yeltsin constitution: 58%-42% with a 55% turnout.

The Constitution of the Russian Federation

Separation of power

• importance of separation of power for democratic rule;

• main principles of separation of power: each power branch must be independent but under control (system of checks and balances);

• four ideal types of republics: presidential, parliamentary, parliamentary-presidential, premier-presidential

Presidential republics

The most explicit separation of power:- executive body and legislative body are elected

independently and parallel; - the president is the head of state and bearer of

executive power;- he can’t disband the parliament and initiate a bill

(with the exception of budget low)- the parliament can’t initiate the vote of no

confidence and bring the government to resign but can control president and government (impeachment, commissions etc.)

Threats of presidentializm

• struggle between executive and legislative body rejection of negotiations => infectivity of decision-making, instability and overthrown of the regime and establishment of autocratic rule;

• concentration of power in the hands of one political actor wile coinciding political positions of legislative majority and government

Parliamentary republic

• executive body (the government) is formed as a result of a parliamentary election;

• a government is responsible to parliament;

• a parliament can initiate the vote of no confidence and dissolve a government;

• parliament can be disbanded

Parliamentary-presidential republic

• two parallel and independent procedure of election => parallel legitimacy of executive and legislative power;

• a big amount of prerogatives of a president;

• double responsibility of a government;

• parliament can be disbanded

High level of political instability.

Separation of power in Russia

Russia is a parliamentary-presidential republic.According to the Constitution Russia is a democratic

federative republic. Sate power in Russia is carried out by dividing power into three formally independent branches: legislative, executive and judicial. Legislative power belongs to the Federal Assembly (the Parliament). Executive power belongs to the government.

The President is a head of the state. In 2012 he was elected for 6 years (5 years in 1991-1996; 4 years in 1996-2012). One person can’t serve as President for more than two terms in succession.

The President has a big amount of authorities and can intervene in executive and legislative decision-making

President's annual message and the building of the President administration

Authorities of the President

1. The president of Russia determines the basic objectives of internal and external policy of the state;

2. He can influence the government: • the government is formed as a result of

presidential election;• the president appoints, with the consent of the

State Duma, the Chairman of the government or the prime minister;

• he adopts decisions on the resignation of the government.

Authorities of the President3. Can influence other important appointments. The president:• nominates to the Sate Duma a candidate for the post of the

Central Bank; • presents to the Federation Council candidates of justices for

the Constitutional, Supreme Court and Supreme Arbitration Courts and a candidate for the post of General Prosecutor;

• forms and heads the Security Council;• As the Supreme Commander-in-Chief of the Armed Force

of the Russian Federation dismisses commanders of the Armed Forces;

• appoints diplomatic representatives for approval by the Parliament;

• confers supreme military and supreme special titles and honorary titles of the state.

Authorities of the President

4. The president can influence legislative decision-making:

• can dissolve the State Duma;

• has the right to pass the decision to conduct the referendum on federal issues;

• can propose lows

• can enact by-lows (decrees etc.)

The Parliament

The Federal Assembly – the Parlament of the Russian federation consists of two chambers

• the Federation Council is the upper house (two representative of each subjects of the Federation).

• the State Duma is the lower house (450 deputies). The sessions are open, but they have the right to pass the

decision to conduct closed sessions. Each chamber forms committees and commissions. Both

chambers set up the Accounts Chamber to monitor implementation of the federal budget.

The State Duma

The State Duma • adoption of laws which must be examine by the Federation

Council;• consent to the appointment of the Chairman of the

Government of the Russian Federation by the President of the Russian Federation;

• deciding the issue of confidence in the Government of the Russian Federation;

• appointment and dismissal of the Chairman of the Central Bank, the Chairman and half of the auditors of the Accounts Chamber;

• Appointment the Ombudsman (Commissioner for Human Rights);

• announcement of amnesty;• bringing charges against the President of the Russian

Federation for his impeachment.

The Federation Council

• adoption lows on changes of borders between subjects of the Federation;

• decision about the introduction of martial law and a state of emergency;

• approval of a use of military forces outside the country.• appointment and dismissal of the Prosecutor General

and judges of the supreme body of the judicial branch,• Appointment of the deputy Chairman and half of the

auditors of the Accounts Chamber• final decision on the impeachment of the President and

the announcement of new elections of the President.

Other checks and balances • When the selected candidate of the prime-minister is rejected

three times, the President appoints the Prime Minister himself, can dissolve the State Duma and announces new elections.

• Very difficult procedures if impeachment and vote of non confidence.

Art. 117: “A no-confidence resolution shall be adopted by a majority of votes of the total number of the deputies of the State Duma. After the State Duma expresses no-confidence to the Government of the Russian Federation, the President of the Russian Federation shall be free to announce the resignation of the Government or to reject the decision of the State Duma. In case the State Duma again expresses no-confidence to the Government of the Russian Federation during three months, the President of the Russian Federation shall announce the resignation of the Government or dissolve the State Duma”.

Other factors weakening the Parliament

1. Numerous subjects of legislative initiative:President of the Russian Federation, the Council of the

Federation, the members of the Council of the Federation, the deputies of the State Duma, the Government of the Russian Federation, the legislative (representative) bodies of the subjects of the Russian Federation, the Constitution Court of the Russian Federation, the Supreme Court of the Russian Federation, the Higher Arbitration Court of the Russian Federation

Adoption of lowsVery difficult procedure of the adoption of lows:Federal laws adopted by the State Duma are submitted within five days for

examination by the Federation Council. A federal law is considered to have been approved by the Federation Council if over a half of the total number of members of that chamber has voted for it or if the Federation Council does not examine it within fourteen days. In the event that the Federation Council rejects a federal law, the chambers may set up a conciliatory commission to settle differences, after which the federal law shall be reconsidered by the State Duma.

If the State Duma disagrees with the decision of the Federation Council a federal law is considered to have been adopted if in the second vote not less than two thirds of the total number of deputies of the State Duma have voted in favour of it.

If the President of the Russian Federation rejects a federal law within fourteen days of receiving it, the State Duma and the Federation Council shall reconsider. If upon reconsideration the law is approved in the previously adopted wording by a majority of not less than two thirds of the total number of members of the Federation Council and of deputies of the State Duma, it must be signed by the President within seven days.

Other factors weakening the Parliament

2. Control of the President over the Parliament because of the majority of “United Russia” (Единая Россия);

3. Informal practices (“Forced” or “negotiated” voting of other parties (LDPR))

Legislature 2007-2011

FactionNumber of seats

%

United Russia 315 70%

Communist party 57 12.7%

LDPR 40 8.9%

Just Russia 38 8.4%

2011- legislature

FactionsNumbers of seats

%

United Russia 238 52,9 %

Communist party of the Russian Federation

92 20,44 %

Just Russia 64 14,22 %

LDPR 56 12,44 %

Judicial system

There are courts of first instance (original jurisdiction) and second instance (appellate jurisdiction).

A court of original jurisdiction is one which first examines a case and brings in a sentence or decision. A court of second instance examines appeals and protests against sentences and decisions of courts of first instance.

The Supreme Court is the highest judicial body; it tries the most important criminal and civil cases and hears appeals against the decisions and sentences of other courts.

The Supreme Arbitral Court is the highest judicial body for settling economic disputes and other cases examined by courts of arbitration.

The problem of independence.

Judicial systemConstitutional court is a high court which is empowered to decide whether

certain laws or presidential decrees are in fact correspond to the Constitution.

Its objective is to protect the Constitution (“constitutional control" or "constitutional supervision") and deal with a few kinds of disputes where it has original jurisdiction, whereas the highest court of appeal is the Supreme Court of the Russian federation.

“Independence”: Constitutional Court Judge Vladimir Yaroslavtsev in an interview to the Spanish

newspaper El Pais in August 2009 claimed that the president executive office and security services had undermined judicial independance in Russia. The Constitutional Court accused Yaroslavtsev of "undermining the authority of the judiciary" in violation of the judicial code and forced him to resign from the Council of Judges. Judge Anatoly Kononov, who had frequently dissented from decisions taken by the majority of the court, in his interview supported Yaroslavtsev, claiming that there was no independent judiciary and criticized the new amendments concerning appointment of the court chairman as undemocratic. The Constitutional Court forced Kononov to step down from the Constitutional Court in January 2010

The Constitutional Court

Conclusion

• separation of power unfavorable for democratic rule especially with the combination of tradition of domination of one actor;

• political process in Russia (including decision-making) is influenced by the domination of informal rule and practices => “privatization” of decision-making legislative process and judicial system

separation of power

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