Over the last few months, the Russian State Duma has been seriously involved in constitutional construction, working on the creation of new principles for forming the Federation Council, Russia’s second house of Parliament. Constitutional law expert and professor at the Higher School of Economics Juliana Demesheva analyzes the proposed changes from the point of view of their conformity with the principle of separation of powers.
In the Westminster parliamentary model, the upper chamber of the parliament (i.e. House of Lords) is entirely or almost entirely appointed by the monarch.
Since early spring, State Duma deputies have introduced two bills that change the procedure of electing (appointing) Federation Council members. On March 7, 2014, a new bill for a constitutional amendment (entitled “On the Federation Council of the Federal Assembly of the Russian Federation”) enabling the Russian president to appoint up to 10 percent of members of the Russian Federation Council was introduced to the State Duma. On March 13, 2014, another bill was submitted that introduced changes to Articles 3 and 8 of the federal law “On the Procedure of Formation of the Federation Council of the Federal Assembly of the Russian Federation” and to Articles 6 and 27 of the federal law “On the Status of Members of the Federation Council and the Status of Deputies of the State Duma of the Federal Assembly of the Russian Federation.” This bill enables Federation Council members to combine their membership in the Council with their duties as deputies of legislative bodies in Russian regions.
The second bill was passed on the first reading and is currently under consideration by the State Duma. The first bill introducing a constitutional amendment passed three readings in the State Duma and, after having been approved by the government of the Russian Federation, was submitted to the Federation Council, which also granted it approval.
Let us examine the substance of the recommended changes. According to the first bill’s explanatory note, a constitutional provision allowing the president of the Russian Federation to appoint and recall Federation Council members will serve the “purpose of improving the procedure of forming the upper house of the Russian Parliament.” The legal ignorance of the bill’s authors hits the eye right away. The two houses of the Federal Assembly of the Russian Federation are not marked as “lower” and “upper,” there is no hierarchical relationship between the two, and they each have clearly delineated areas of duties.
The explanatory note further says that “Article 95 of the Constitution of the Russian Federation determines the procedure of formation of the Federation Council, according to which the Federation Council includes two representatives from each subject of the Russian Federation: one from the legislative and one from the executive body of state authority.” The bill proposes to expand the Federation Council by 10 percent by including representatives not only from the Russian regions, but also from the federal center, to be directly appointed by the president of the Russian Federation (this provision is called the “presidential quota”). According to the authors of the bill, the adoption of the draft law will “create supplementary conditions for achieving a balance between the duties and legal interests of the Russian Federation and [those of] its subjects, which represents a key objective of the Federation Council’s activity as a constitutional body of the Russian Federation that is supposed to reflect its federal form of government.”
The fact that representatives of the Russian Federation in the Federation Council will not be elected but appointed and can be recalled by the president of the Russian Federation deserves special mention. Thus the following question arises: How does the proposed procedure of direct appointment by the president of members of one of the houses of Parliament comport with the principle of separation of powers?
The main argument of supporters of the “presidential quota” is that the practice of members of a parliament being appointed by the head of state is not a Russian invention and is rather widespread. They offer as an example the Westminster parliamentary model, in which the upper chamber of the parliament is entirely or almost entirely appointed by the monarch. Countries with a constitutional system that allows the head of state to fill a certain “quota” of appointments are also cited as examples. The Italian president, for instance, has the right to appoint five honorary senators for life.
The global experience undoubtedly deserves attention. However, a number of factors make the implementation of this practice in Russia untoward. First of all, the procedure of parliamentary formation in countries with a monarchical system of government is hardly suitable for countries with a republican form of government, such as the Russian Federation. In the Westminster parliamentary model, the head of state (monarch) is part of the legislative branch and represents, for all intents and purposes, another (third) chamber of the parliament. This principle is known as the “Crown-in-Parliament,” and according to it, power derives from the monarch while the parliament, being a government body, acts as a mediating institution in the legislative sphere. As a result, the appointment of members of the parliament takes place within one branch of government and does not contradict the principle of separation of powers.
As for the Italian model of formation of the legislative branch, the president of the republic can indeed appoint as senators five citizens “who have honored the Nation through their outstanding achievements in the social, scientific, artistic and literary fields” (Article 59 of the Italian Constitution). Furthermore, after resigning, the president himself can become a senator.
However, one should not forget that Italy is a parliamentary republic, in which the head of state is elected not by the population but by the parliament, whereas Russia is a mixed or semi-presidential republic. Furthermore, unlike the Russian head of state, the president of the Italian Republic does not have any real political power. According to Article 89 of the Italian Constitution, no act of the president of the republic is valid if it is not signed by the proposing ministers, who assume responsibility for it. This constitutional provision concerns, among other things, presidential decrees on the appointment of senators for life. Therefore, the institution of countersignature—that is, the mandatory ministerial approval of presidential decisions—makes the Italian model wholly unsuitable for Russia. To complete the picture, one should add that the president of Italy is subject to parliamentary control and may be impeached by an absolute majority of members of parliament in a joint session of the two houses for high treason or for an attempt to violate the constitution (Article 90).
Classic republican models, parliamentary as well as presidential, possess a system of checks and balances—that is, mechanisms intended to prevent concentration of power in one particular state institution. In parliamentary republics, the president and the government are subject to control by the legislature. In presidential republics, the post of prime minister does not exist; instead, the president heads the executive branch and is an integral part of it. Therefore, the powers of the parliament directed at checking and balancing the executive automatically apply to the head of state as well. In Russia, the president is not part of the executive branch and is not responsible for the actions of the government and federal agencies, although he or she can direct their activities.
According to the doctrine of constitutional law, the principle of separation of powers is some 3,000 years old [1]. Plato and Aristotle were the first to define certain elements of this principle. The concept of separation of powers was introduced in more modern form by John Locke in 1689 in his Two Treatises of Government and is slightly different from the familiar contemporary model. According to Locke, a government should have three branches: the legislative branch (which adopts laws), the executive branch (which implements laws), and the federative branch (which conducts foreign policy). As for the judiciary, it is, according to Locke, an integral part of the executive branch. This idea could easily find support among lawmakers of the current convocation of the State Duma.
The contemporary model of separation of powers, however, is based on the theory of Charles de Secondat, Baron de Montesquieu, which he outlined in his famous work The Spirit of the Laws. Montesquieu calls for a mechanism that prevents the concentration of power in the hands of any one person or body as a means to avoid tyranny [2]. Consequently, he divides government power into three branches—executive, legislative, and judicial. All three branches are theoretically equal and balance each other in order to prevent despotism and to protect freedom.
From the point of view of Montesquieu’s model, State Duma deputies’ proposition to invest the president of the Russian Federation with the authority to appoint and recall Federation Council members raises questions about the independence of the legislature.
According to Articles 10 and 11 of the Constitution of the Russian Federation, the president is not part of any branch of government. An analysis of the president’s powers in the executive sphere suggests that the majority of the Russian president’s functions are typical of a head of state of a presidential republic, such as the right to form and dismiss the government as he deems fit, the right to nullify the government’s actions, and the right to directly manage the activity of federal executive bodies.
In presidential republics where the head of state manages the executive branch, the president usually does not have the right to influence the legislature or to dissolve the parliament. The president of the Russian Federation, however, has such a right. According to Parts 3 and 4 of Article 117 of the Constitution of the Russian Federation, the president can dissolve the State Duma if it twice passes a vote of no confidence or refuses credence to the government.
The new bill broadens the authority of the head of state even more: in addition to the right to form the supreme executive body—the government—the bill enables the president to appoint and, what is even more important, to dismiss as he deems fit members of one of the houses of the supreme legislative body—the Federation Council.
What is the danger of such a broadening of authority? The danger lies in the potential conflict of interests. The impeachment procedure established by Article 93 of the Constitution is Parliament’s only constitutional means of directly influencing the president. It is the Federation Council that has the right to impeach the president. However, in order to be able to do that, the legislature should be truly independent in its decisions. One may assume that if the president has the authority to dismiss Federation Council members, this may influence the Council’s decision—especially if members have no constitutional or legislative guarantees that they will not be dismissed at the moment the body advances charges against the president . This bill does not provide such guarantees.
In other words, investing the head of state with additional authority to influence the legislative branch further disrupts the already-tilted balance in the system of separation of powers in Russia. One should not forget that the head of state’s strong influence and control over the supreme legislative body (Parliament) is one of the key attributes of a “super-presidential republic.” This means that Russia is assuming a model of government in which the principle of separation of powers hardly works and power is concentrated in the hands of the president and the executive bodies controlled by the president. In any country, including Russia, the violation of the principle of separation of powers usually has a negative outcome. The concentration of political power in the hands of any one person or body makes the constitutional system vulnerable and unstable.
References
1. See: Peter Barenboim, Three Thousand Years of the Doctrine of Separation of Powers: Souter Court, 2nd ed. (Moscow: ROSSPEN, 2003).
2. See: August Mishin, Constitutional (State) Law of Foreign Counties (Moscow: Statut, 2013), 293.
