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Analysis: The Kremlin v. Valerii Zorkin?

Boris Nemtsov (file photo) Ever since President Vladimir Putin, as a purported response to the horrific terrorist attack on a school in Beslan, North Ossetia, proposed eliminating the direct election of most regional executive-branch heads and replacing them with a system under which local legislatures would approve candidates nominated by the president, opponents have been denouncing the plan as unconstitutional. On 30 September, a group of 19 leading liberals, including six State Duma deputies and former Union of Rightist Forces co-leaders Boris Nemtsov and Irina Khakamada, published an open letter to Constitutional Court Chairman Valerii Zorkin asking him to weigh in on the constitutionality of the proposal. The letter was the initiative of independent Duma Deputy Vladimir Ryzhkov, who has been the most vocal and articulate opponent of the measure.

Ryzhkov told on 30 September that he addressed the appeal to Zorkin in the hope that he would make public his understanding of the proposal before the Duma adopts it. "In appealing to the Constitutional Court to review these anticonstitutional amendments, I am trying to forestall a situation. Specifically so that we deputies are not pushed into an obvious transgression of the constitution. The amendments are anticonstitutional in their concept, no matter what changes the deputies make to them prior to adoption," Ryzhkov said.

In a commentary published in "The Moscow Times" on 5 October, Ryzhkov outlines the provisions of the constitution that he believes are violated by Putin's proposal -- Articles 1, 3, 5, 10, 11, 32, 71, 72, 73, and 77. Primarily, opponents say the move will destroy the country's constitutionally mandated federative structure and replace it with a unitary state. Supporters of Putin's reform proposals note that Article 77 of the constitution specifies that the principles for organizing government organs in the federation subjects is established by federal law and specifies "a unified system of executive power in the Russian Federation."

Opponents of Putin's proposal frequently cite a 1996 Constitutional Court ruling regarding a case about the selection of the executive-branch head of Altai Krai. At that time, the court ruled that one branch of government could not play a role in the formation of another branch of government, specifically saying that it was unconstitutional for a regional legislature to select the head of the region's executive branch. Former Constitutional Court Chairman Vladimir Tumanov told "Rossiiskaya gazeta" on 15 September, however, that the Altai ruling could be set aside in the interests of national security.

On 1 October, however, the court's press service issued a statement saying "members of the Constitutional Court do not have the right to react to this letter, but only to official complaints or queries from citizens regarding existing legislative acts," Russian media reported. This reaction was widely expected from the scrupulous Zorkin, although Khakamada continued to express the hope that Zorkin will respond to the letter "as a private individual." Despite headlines such as "Valerii Zorkin Will No Longer Save The Constitution," which appeared in "Vremya novostei" on 1 October, the court's reaction does not mean that the ultimate fate of the measure won't be decided within the chambers of the Constitutional Court. However, to file an official "deputies' inquiry" to the court, supporters of the appeal face the daunting task of gathering 90 signatures in the Duma, "Russkii kurer" reported on 4 October.
"The Constitutional Court has interpreted its own authority as narrowly as possible."

Ryzhkov pointed out to "Vremya novostei" that Article 100, Part 3, of the constitution authorizes the court -- and the president -- to send messages to the Federal Assembly and that, if Zorkin had wanted to, he could have used this provision to respond to the open letter. However, "in 11 years this provision has not been used even once," Ryzhkov noted, saying that "the Constitutional Court has interpreted its own authority as narrowly as possible" in this case. Some analysts have interpreted this as indicating that the court will attempt to sidestep efforts to force it to rule on the proposals. "Most likely, there will be attempts to pressure the Constitutional Court," Nemtsov told "Russkii kurer."

Zorkin's Constitutional Court, however, may well be the last bastion of independent political power in Putin's Russia. In October, the court struck down some highly controversial provisions of a Kremlin-backed law on guaranteeing the rights of voters that placed harsh restrictions on media coverage of election campaigns. The ruling came after weeks of posturing by Kremlin agents, including a statement by Central Election Commission (TsIK) Chairman Aleksandr Veshnyakov "predicting" that the court would refuse to hear the case (see "RFE/RL Newsline," 5 November 2003).

Zorkin was also in charge of the court on 21 September 1993, when it ruled that then President Boris Yeltsin's decree disbanding the Supreme Soviet was unconstitutional. That verdict sparked a standoff between the legislature and Yeltsin that ended when the president ordered tanks to fire on the White House. On 6 October 1993, Zorkin was forced to resign as chairman of the court.

Zorkin's reelection to the post on in February 2003 came as a surprise, as the Kremlin was widely reported to have been backing a third term for then court Chairman Marat Baglai. "Moskovskii komsomolets" reported on 22 February that Zorkin had the support of presidential adviser and Petersburg chekist Viktor Ivanov, while Baglai was backed by deputy presidential-administration head Vladislav Surkov, who is believed to be the architect of Putin's proposal to end the direct election of governors (see "RFE/RL Russian Political Weekly," 3 March 2003). According to the daily, the court judges who voted for Zorkin were put off by Surkov's arrogance, commenting sarcastically that the only forces higher than the Constitutional Court are "the Russian Constitution and Surkov." An unnamed senior Kremlin official told ITAR-TASS on 28 September that the court's 1996 decision in the Altai Krai case was most likely prompted by "a political situation" and that the court would most likely agree with the Kremlin that the proposal "does not restrict citizens' constitutional right to elect and to be elected." It seems quite possible that another major showdown between the court and the Kremlin is in the offing.

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