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Correspondents' Reports

JURIST's Russia Correspondent is Robert Teets, Jr., Visiting Professor, Academic Legal University, Institute of State & Law, Russian Academy of Sciences, Moscow.
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[Moscow; Special to JURIST] Your Russia correspondent is an expatriate California lawyer who is currently a visiting professor of law at the Academic Legal University of the Institute of State and Law of the Russian Academy of Sciences (as in other civil law systems, law in Russia is treated as one of the sciences). The Institute of State and Law has held for much of this century an extremely high, if not the paramount position within the Soviet and Russian legal establishment.

The perspectives which I can offer to you in these reports are from five years living and working in the Former Soviet Union (FSU). While my Russian still lacks the fluency to which I aspire, I am simultaneously completing my coursework plus a written thesis for a LL.M. degree which will shortly entitle me to practice here. Although many foreign lawyers have "practiced" here for many years now as legal consultants, the Academic Legal University of the Institute of State and Law has broken ground by offering an LL.M. curriculum leading to a formal license. A small group of American and European lawyers are taking advantage of this program, gaining both substantive knowledge and a working credential.

Russian legal education is not a course of study which is pursued subsequent to one's baccalaureate degree. Rather, like medicine, physics, and other disciplines, it is a five-year university curriculum. Often during that period, the student chooses an emphasis or a specialization which, following graduation, leads to employment as an advocate, a jurisconsult (n.b. these first two approximate the British capacities of barrister and solicitor), a notariat, a procurator, a judge, academic, etc..

As in other newly democratic countries in Central and Eastern Europe plus those of the FSU, there are, today, two distinct generations of lawyers: those with first-hand experience with or in the legal system when everything was part of the State, and those for whom there has always been a private as well as public sector to legal life and practice. Yet the need for initiative and the reality of enthusiasm for change from both groups is genuine: the ongoing reformation in Russian commercial as well as constitutional law has a great many adherents with gray hair upon their heads.

There are many useful lessons from the experience of democratic governance from around the world that Russia is trying to take advantage of as it charts a new course in the world of nations. Yet there are also many problems and controversies still without solution which Russia also shares with the rest of the planet, e.g. environmental quality versus economic development, freedom of the press versus individual privacy, the accountability of elected officials to the voter, land reform, a fair system of taxation, and more.

Among the most immediate legal and political questions in contemporary Russia are those involving federal-regional relationships. The Russian Federation is comprised of 89 "subjects" who joined together under Soviet-era constitutions (e.g. 1978) as well as a rather different 1993 one (note that here we speak of Russian and not USSR constitutions; in fact Russia was proclaimed as a Federation at the Third All-Russian Congress of the Soviets in January of 1918). The central authority of Moscow was never in question during the decades of Soviet administration, but changes over the past decade have introduced a new political as well as legal element into the regional dynamic. Added to an overall sense of self-empowerment has been a strong desire at the federal level in Russia to reform Soviet-era statutes and other normative acts, and to harmonize disparate elements in the legal regime so as to redress contradictions and promote certainty.

The still developing political factions in the State Duma and Federation Council (which together comprise the Federal Assembly or Russian parliament) contend with an overfull plate of tasks plus a frequent lack of consensus about what should be done and how to do it. In the face of federal legislative overload and gridlock during the first two sessions of the Russian Duma (i.e. the 3rd Duma was just elected on 19 December 1999, and took office in January 2000), the Russian Presidency has played a valuable, necessary, and pro-active, if sometimes controversial, role, especially in the spheres of privatization, sectoral coordination and prioritization, and regulatory innovation.

Russia's first President Yeltsin and his several prime ministers of the Russian Praviteltsva have led the way in economic progress and reform through the extensive use of agreements and decrees as well as more traditional forms of governmental rule-making. Because these add to, derogate from, or modify pre-existing statutes or other normative acts, these Presidential agreements and decrees have become an unusually important part of the current Russian legal as well as political regime.

The 1993 Russian constitution declaims parity (Articles 5[1] and 72[2]) as between the 89 "subjects" of the Federation of which 21 are republics, 6 are krai, 49 are oblasts, 2 are cities-of-federal-importance (i.e. Moscow and St. Petersburg) , 1 is an autonomous oblast, and 10 are okrugs. Articles 65, 66, and 72 describe their legal jurisdiction or competencies. But just as in the American federal state where different states have greater political clout, different Russian subjects have different power, albeit de facto and not de jure.

According to this writer's mid-1998 tabulation, thirteen out of the 21 republics and twenty out of 49 of the oblasts were party to special Presidential agreements. Three out of the 6 krai in the Federation had them. One out of the 10 okrug had them. Both cities-of-federal-importance had them. And according to reports from the then-Kiriyenko government, extensive further revisions of these agreements were in process.

Initial complexities have arisen from subject-level constitutions and charters. A first level of complexity has been created by the constitutions and charters (e.g. Tatarstan and Tula respectively) which many of the subjects have adopted for themselves, the extreme case being the degree of autonomy claimed by the Chechen Autonomous Republic. These regional-level instruments often derogate from an implied equality between each of the subjects-of-the-Federation (especially, articles 76[1] and 77[2]) and the supremacy of the Russian government (article 76[5]) in chapter 3 of the federal Constitution).

Presidential agreements, treaties and decrees often delegate legal power and authority to a particular federal subject enabling that subject to exercise some degree of independence from the RF government in various arenas, e.g. the control of natural resources. These agreements are grounded in, inter alia, article 66 parts [4] and [5] of the Constitution, and have created regional variations in power-sharing as well as some favoritism and inequity. The "federal constitutional law" referred to in article 66[5] covers the six fundamental matters described in article 106. Of these the most obviously pertinent are the first three, viz. [a] budget; [b] taxes and levies; [c] financial, currency, credit and customs control and the issuance of money.

Presidential decrees are grounded in article 90 of the Constitution, and regulate a wide range of questions, albeit sometimes in contradiction with nominally applicable statutes, codes, and other normative acts. They have force throughout Russia, which means that until both houses of the Legislature act, the President has the power to rule by decree. Only acts on martial law and on a state of emergency require confirmation by the Duma.

The political stalemate within the first (1993-95) and second (1996-1999) Dumas over many issues stimulated the development and exercise of legislative initiative at the subject-of-the-Federation level. Among other prominent examples of such initiatives were the land codes in Tatarstan (1995), Samara (1998), Saratov (1997) and Voronezh (1995), which were adopted in the absence of a new federal land code to replace the Soviet era one from 1991.

Although a new federal Forest Code was enacted in early 1997, regional forest codes had earlier been adopted in of Buryatia (1991), Karelia, Khabarovsk (1997), and Komi with the validity of the Karelia and Khabarovsk having under gone a legal challenge in 1998 and been found wanting by the Russian Constitutional Court on federal supremacy grounds. This was notwithstanding presidential agreements which had been thought to have delegated them authority to act independent of Moscow.

More generic legislating has been in the realm of, for example, access to environmental information (St. Petersburg) and a World Bank-funded plan (Regional Environmental Action Plan-REAP) which includes a comprehensive package of environment protection statutes and other normative acts for Sverdlovsk Oblast. Finally Komi has just enacted (January 2000) a more refined strategy to meet its felt needs in the timber sector, albeit perhaps again to the derogation of federal law.

Where is this going then? Certainly subject-level initiatives are multiplying - indeed, the Russian Ministry of Justice has repeatedly complained that a very high proportion of the statutes and other normative acts being legislated in the regions contradict federal law. And as in the case of land reform, as long as the Federal Assembly remains at loggerheads, there are limited grounds for any judicial remedy.

While some might look for direction to statements of candidate Putin or his competitors in the upcoming Presidential election, I would turn to the 1998 Small Encyclopedia of Constitutional Law written jointly by Chief Justice M.V. Baglai of the Russian Constitutional Court and another prominent Russian legal scholar, V.A. Tumanov. Therein is an entry for "federatsia," noting that there are nearly 20 federations in the modern world and that while diverse ethnic populations complicate the stability of central governments, four principles are shared by all contemporary federal regimes: [1] equality between the member subjects; [2] the primacy of national constitutions over all other constitutions, charters, statutes, and other normative acts; [3] equal rights for each citizen and in particular, a freely mobile labor force, an open market for goods, and the free flow of capital; [4] a prohibition upon the unilateral secession of any subject from the federation.

I am up-beat about the prospects for legal and political stability within the Russian Federation. Still, for the present moment, it should be clear that Russia's federalism, like that of the United States, is in some significant respects an experiment in flux.

Robert Teets, Jr.
JURIST Russia Correspondent

Visiting Professor
Academic Legal University
Institute of State & Law
Russian Academy of Sciences
Moscow, RUSSIA

March 24, 2000

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