Under Russian Constitution, Federal Laws Don’t Always Take Precedence Over Republic Ones, Tsyplayev Says

Paul Goble

            Staunton, December 13 – Sergey Tsyplayev, a former presidential plenipotentiary in St. Petersburg and now dean of law at the North-West Institute of Administration of the Russian Academy of Economics and State Service, says that under the Russian constitution, federal laws don’t always take precedence over republic ones, as far too many claim or assume.

            In Vedomosti yesterday, Tsyplayev who participated in the drafting of Russia’s constitution in 1993 says that the most obvious “contradiction” between that document and “the traditional administrative culture” of Russia involves an understanding of just what federalism entails (vedomosti.ru/opinion/articles/2017/12/12/744909-federalizm-iz-konstitutsii).

            (The Vedomosti article is a slightly reduced version of his blog post (echo.msk.ru/blog/tsuplyaev_s/2109648-echo/). The discussion below follows that post rather than the shorter published article.)

            Russia has traditionally had an administrative system “in the form of a command hierarchical vertical,” the legal specialist says; but “the task of federalism is exactly the opposite,” originating as it does in a recognition of the complexity and variety of social life in the country.

            “If one reads the Constitution carefully, then it becomes clear” that it enshrines federalism with its “horizontal” links rather than any power vertical, that it divides power rather than unifies it, and that it encourages officials at all levels to be “responsive to their electors rather than to their bosses,” as a vertical system requires.

            The constitution specifies, the legal expert continues, that some powers are the exclusive province of the federal government, some are shared between it and the federal subjects, and that all not enumerated on either of these lists belong to the federal subjects and the Russian people, the ultimate source of sovereignty.

            It is thus “untrue” to claim as some do “that federal laws are always higher and more important than regional ones and that they can regulate the latter” however Moscow wants, Tsyplayev says.

               Those who support the idea of “a power vertical” view power as flowing in every case from the top down with the top being “the source of power” rather than the people. “But the Constitution proclaims that ‘the bearers of sovereignty’ and the single source of power in the Russian Federation is its multi-national people.”

            Among the many things that means, Tsyplayev argues, is that the federal center cannot appoint and remove governors at its discretion or because a governor has “lost the trust” of the Kremlin.  “A governor receives his mandate from the hands of the people and is responsible to them.” The center’s ability to move against him is strictly limited by the Constitution.

            Violation of the constitutional norms by the center, he continues, “is worse than theft” because it keeps power “in a closed hierarchical pyramid” and because “people with initiative cannot exist” and develop “an independent character and leadership potential. The result is what we already see – stagnation and ‘nothing more.’”

            Many Russians may find centralization of power comfortable, but they have to recognize that with it comes “a concentration of responsibility” which in turn means that “when the carrots run out,” there is only one place and ultimately one person who can be held responsible. What that leads to, he says, is “what we observed in the case of the USSR,” its collapse.

            “The Constitution of the Russian Federation provides the necessary legal opportunities for a wise decentralization of power and responsibility. Its potential for the development of the country not only is not yet exhausted; it hasn’t even been made use of,” Tsyplayev argues. He urges promoting “a new zemstvo” movement as a start.

            The constitutional law specialist then turns to the current proposals to rewrite the constitution, proposals that he says tend to arise whenever “the political temperature goes up.”  But he warns that those calling for these things should remember that it is easier to start this process than to end it and that it entails risks to the rights and freedoms of Russians.

             What is needed, he suggests, is not a rewriting of the country’s basic law but rather addressing “the significantly more complicated and long-term task – the rearrangement of the political culture” of the Russian people and its governments.  The questions thus are “do we want to grow?” or do we want to stagnate as we are now?