Russian Constitution in the World Political Process (On the Occasion of the 10-th Anniversary of the Russian Constitution of 1993)

Abstract

The Russian model of transition to democracy is a very important subject for political and constitutional debates in contemporary Russia. The essence of this article is to reconstruct the process of the Russian post-Soviet transition to democracy in comparative perspective. The adoption of amultidisciplinary approach is of utmost importance in the current context of Russian constitutionalism, in particular in analysis of the interaction between legal reform and socio-political reform process. Main parts of the article are devoted to different aspects and implications of the Russian constitutionalism in creation.
The initial part of the article is devoted to theoretical and comparative aspects of the problem. The author discusses them in terms of constitutional revolution and constitutional reform, negotiated transition and transition by rupture, legitimacy and legality. The research data show very clearly the difference between two main models of transition and its meaning for the future of liberal constitution in South Europe, East Europe, Asia, Africa and Latin America. From this perspective the author uses the comparative method and constitutional legal science methods for the interpretation of different sources and materials on constitutional revolutions and reforms, problems of democratic transition and consolidation in Southern Europe, South America and Post-Communist Europe. These parts of the world appeared recently to be the arena of constitutional changes, which influenced Russian transition or can be analyzed for the clarification of some aspects and difficulties in the process of the Russian legal and political transformation.
Another part of this international experience is concerned with some difficulties of the process of reception and implementation of legal transplants in another social and political context. From this point of view it was very important to make clear the methods and forms of pseudo-constitutionalism in political process of transitional regimes. Reflections on African, Latin American and Asian constitutionalism can be informative for some aspects of Russian model. Transitions in the contemporary world used constitution as an instrument of political cohesion and the source of consensus. The procedures of constitutional amendments and amending process, legal transplants and their social effect, the process of drafting the constitution — are subjects of utmost importance for contemporary Russia. Patterns of constitutional evolution and change in Eastern Europe, the Roundtable Talks and the breakdown of Communism which were part of political process, initiated by Russian reforms, influenced later these reforms, provided in its turn models and patterns for constitutional debates between political parties and bureaucracy, government and the constitutional jurisprudence.
The author's attention was dedicated to the constitutional revolution in Russia (1989-1993). That is an example of the transition made by revolutionary rupture of constitutional continuity. How did these new trends in international constitutional engineering and its methods influence constitutional design in Russia and the choice between two main models of transition? Why did Democratic Rupture model overwhelm Negotiated Reform model in Russia? Which trends in post-Soviet political development determined the predominance of a very specific variety of presidential regime? To answer these questions the author presents some observations on democratic transition and consolidation in Southern Europe, Latin America and Southeast Asia, describing the political impact of different forms of presidentialism. The author discusses the experience of different transitional political elites in drafting constitution for their nations. According to his point of view the problem of Constitution Making is not only a juridical problem, but also a political one. Constitutional viability can be realized only under some necessary conditions — high level of political coordination between political parties, government and other institutions of the civil society in formation, the existence of a dialogue between important actors of political process in Constitutional Assembly, accord between them about the basic principles, values and targets of the transitional process.The lack of such trends in the Russian post-Soviet constitutionalism was the main source of its feebleness and the use of revolutionary methods for constitutional changes.
The important immanent contradiction in the Russian constitution is that between broad declarations of personal rights on the one hand and great powers of the president on the other. At the core of this approach is the discussion about relationships between legitimacy and legality, different views on the series of Coup d'Etat which symbolized the destruction of political system and made the breakdown of the Soviet (nominal) constitutional tradition unavoidable. This discussion about origin of the constitution and its legitimacy became very sharp on the eve of 10-th anniversary of the Russian Constitution of 1993.
In the final part of the article the author presents some conclusions on the Russian model of transition process and its specific features. The main question of this part is the political regime of Russia and the possibility to explain it in terms of classical forms of government (parliamentarism, mixed presidential-parliamentary system and presidential system). The most important arguments of jurists and political scientists which were formulated during current Russian constitutional discussion in favor of each position or against it have been explored in the article. The author's conclusion is that the nearest analog to the Russian system is the Latin American «presidencialismo» or super-presidential system with its power of presidential decrees in a state of necessity. His argument is that constitutionally and some times politically prerogatives of the president in such type of a system are almost unlimited. He emphasizes first of all the role of metaconstitutional powers of the Russian president and the role of the Russian monarchical tradition in the formation of the system.
The central item of the Russian constitutional debates today is the question of possibilities and reasons for constitutional reform. The author shows the main methods and procedures of revision (legal, extralegal and illegal), proposals in favor of different developments (toward parliamentary, mixed and presidential systems and their different modifications) and the main political forces (left, right and moderate tendencies), which can be presented as a main steering wheel of the actual constitutional process.
The author's conclusion is that the Constitution of 1993 has been already changed rather seriously (by constitutional laws, its judicial interpretation, administrative reforms and by modification of the general political climate). In other words gradual and invisible constitutional reform was realized without formal changes of the text (by constitutional legislation, reforms of federalism, Upper Chamber of Parliament, administrative practice). That is why the question of constitutional reform is not so acute in the agenda of existing government. On the other hand the formal change of the Constitution cannot be supported by liberal movement because of a danger to lose the existing forms of political process and achievements of transitional period to democracy.
From this point of view the author is looking for a political terminology for adequate interpretation of this new political reality. He addresses some features of constitutional developments of Weimar Republic, the 5-th French Republic, some modernizing countries of Latin America and post-Communist Eastern Europe, but also Russian historical tradition. He argues that the real formula of transitional process here is the transition from nominal type of constitutionalism to a specific type of pseudo—constitutionalism («scheinkonstitutionalismus» in German terminology) and regime of plebiscitarian democracy (or delegative democracy) with its further transformation toward a system of democratic caesarianism. These forms of political regime are historical and sociological forms and modifications of limited democracy or authoritarianism which till now have not been represented (in its authentic form) in the Russian political context.
Contending that different liberal strategies are appropriate under different historical circumstances, A. Medushewsky argues for a return to liberal constitutional theory as the best foundation for political analysis of the Russian constitutional transformation. One of his conclusions is that in countries of «delayed development» (such as Russia), which lack a developed civil society, the state itself must be the instrument of liberalization and cannot avoid coercive measures and as a consequence — the phase of pseudo-constitutionalism. From this point of view he focused his attention on the contradictions of constitutional modernization, interpreted as the process of transition from authoritarian state to modern democracy through the intermediate stage of plebiscitarian democracy.