6 October 2004, Volume 4, Number 39
THE KREMLIN V. VALERII ZORKIN?By Robert Coalson
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, on 30 September 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 gazeta.ru 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.
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.
RALLYING FOR THE RIGHT NOT TO VOTEBy Robert Coalson
President Vladimir Putin's 13 September proposal to replace the direct election of regional-administration heads with a system under which local legislatures confirm candidates nominated by the president provoked very little reaction among the Russian public. In Moscow, liberals and leftists were able to summon no more than 100 people to their modest demonstration against the measure. Public-opinion polls generally show that society -- tired of years of badly discredited local and national elections -- is not particularly worried about this possible curtailment of its democratic rights.
Some liberals, including vocal independent State Duma Deputy Vladimir Ryzhkov, have cited the possible resistance of citizens of Russia's so-called ethnic republics to the loss of elections as an argument against Putin's initiative. In an interview with RFE/RL's Russian Service on 15 September, Ryzhkov listed this as one of the "destabilizing" consequences of the proposal, saying that these republics value their relative autonomy and would actively resist efforts to curtail it. "Thank God that [Putin] did no more than undermine state institutions like regional government, the legislature, and so on," Ryzhkov said. "If he had gone further, if he now used this storm to arrange the rewriting of administrative borders [and] the liquidation of the republics, then the terrorists would undoubtedly find thousands of supporters in Tatarstan, including ideological supporters since the radical intelligentsia would certainly be in opposition. And then this could really spread along the Volga and into other regions."
But, unexpectedly, the initial response of many residents of these areas, especially Tatarstan, Bashkortostan, and Kalmykia, has been to view the institution of presidentially appointed administration heads as a way of getting rid of firmly entrenched autocratic local leaders who have thoroughly corrupted the local election systems. These republics have depressing histories of elections determined by autocratic rulers who dominate the media, the police, local election commissions, and the courts.
Regions.ru reported on 23 September that a local newspaper in Kazan conducted a telephone poll on the issue and only two of 160 callers objected to the possible elimination of elections, while of the others discussed the appointment system as a possible way of ending the 16-year rule of Tatarstan President Mintimer Shaimiev. "No one in Tatarstan thinks the next [republican] presidential election will be fair," the news service commented. "The new model of selection by the president that Putin has proposed could ensure the revitalization of the regional political elite."
In the Kalmykian capital of Elista on 21 September as many as 2,500 protesters came out to the streets calling for the removal of Kalmykia President Kirsan Ilyumzhinov, who is widely regarded as one of the most autocratic local rulers in Russia. Local police, backed up by Interior Ministry forces from Volgograd and Astrakhan oblasts and other neighboring regions, violently broke up the demonstration, arresting about 80 participants and sending 11 to the hospital, "Nezavisimaya gazeta" reported on 24 September. The daily reported that the suppression of the peaceful rally in Elista can be considered the first "successful" operation of the new joint command of the Southern Federal District, where the decision to send outside forces to the republic was reportedly made.
The Kremlin's attitude toward Ilyumzhinov is by no means clear. On the one hand, the administration clearly backed opposition leader Baatr Shondzhiev in the republic's October 2002 election. However, the second round of that election came in the immediate aftermath of the major hostage crisis at a Moscow theater, and "Moskovskii komsomolets" commented on 27 September that the Kremlin might have turned a blind eye to the numerous campaign violations during that poll out of considerations of stability in the region. Shondzhiev told "Moskovskii komsomolets" on 23 September, following the Elista protest, that the Kremlin supports Ilyumzhinov because "the central authorities do not want another [source of] tension in the North Caucasus" in the wake of the hostage taking in Beslan, North Ossetia, last month.
But the coverage of the Elista protest by the Kremlin-controlled national television channels led many commentators to speculate that Moscow is sympathetic to the demonstrators. "This is a revolution from below," analyst Andrei Piontkovskii told "Moskovskii komsomolets" on 27 September, "but one that has the sympathies of the federal center. If only because otherwise we wouldn't be seeing these demonstrations on our television screens."
"Moskovskii komsomolets" and other Russian media have gone further to suggest even that the Kremlin is willing to ignore reports of ties between Ilyumzhinov and Chechen fighters, including possibly radical Chechen field commander Shamil Basaev. Likewise, regions.ru reported that Tatarstan's Shaimiev has had contacts with Chechen President Aslan Maskhadov and at one time allowed the breakaway Chechen administration of Ichkeria to set up a representation in the republic. Such policies, the website argues, have fostered the growth of Islamist extremism, especially Wahhabism, in the region.
In the cases of both Tatarstan and Kalmykia, there seems to be unexpected support from local political elites for Putin's proposal to eliminate the direct election of regional-administration heads. "Under the pretext of combating terrorism it is unacceptable to combat one's political opponents," State Duma Deputy Speaker Sergei Baburin told "Moskovskii komsomolets" on 25 September, following the Elista demonstrations. Nonetheless, it would seem that in these republics both the opposition and the establishment intend to do just that.
WHY THE CONVENTIONAL WISDOM ABOUT RUSSIA IS WRONG[The following paper was based on a presentation hosted by RFE/RL in Washington, D.C, on 28 September. It was first published on the National Interest Online website (http://www.inthenationalinterest.com). Daniel Kimmage is an analyst and online journalist with RFE/RL.]
By Daniel Kimmage
The brouhaha over President Vladimir Putin's alleged rollback of democratic reforms is a case of misplaced indignation. Putin is anything but an all-powerful autocrat. But the reasons have nothing to do with democracy. They have to do with Russia's schizophrenic and dysfunctional political system, which creates the illusion of concentrating power in formal institutions, while clannish informal groups exercise real power in a chaotic, never-ending struggle for personal gain. That this system is undemocratic could be the least of our worries. It might not even be stable.
When conventional wisdom goes bad, it starts to wear its internal contradictions on its sleeve. In a 14 September editorial, "The New York Times" chided Putin for using the horrific terrorist attack on a school in Beslan, North Ossetia, as a pretext to ram through yet another raft of antidemocratic measures. Be that as it may, the daily provided a beautiful synopsis of the current conventional wisdom on Putin's Russia, with contradictions bared for all to see:
"It has been clear to Russians for some time that all real power flows from Mr. Putin. That is why so much of the public outrage since the slaughter at the Beslan middle school has been directed at him. Over the years, Mr. Putin has made all the other institutions answerable to him in the name of reasserting order. Yet at Beslan there was no order, only the chaos of dysfunctional institutions: government officials who spouted misinformation, armed checkpoints that failed to check anyone, border protection forces that failed to seal borders, elite Army rescue units unable to rescue victims. Many of the most damaging failures were at the federal level, where Mr. Putin's responsibility is already supreme."
As a graduate student in Ithaca, New York, in the 1990s, I shared a house with four of my colleagues. The house was built into a hill, and the kitchen received scant heat in the winter. Eventually, the drain froze up in the kitchen sink, the landlord refused to contemplate expensive renovations, and we stopped paying rent. In the ensuing dispute (which we resolved in our favor), one of my housemates argued, "Running water that has no place to go is not running water."
In Putin's case, the question is, "If all real power flows from Putin, but the institutions he must use to exercise that power are dysfunctional, where is the real power?" Just as ice trumps water when it blocks the drain, the mechanisms that channel power emasculate even the most seemingly autocratic leader when they cannot be trusted to perform the functions with which they are nominally entrusted. Real power, in other words, lies somewhere in the system itself, for whatever its dysfunctions, it is still a system.
The problem, of course, is describing how Russia is actually ruled. The first and most basic truth is that the real picture differs substantially from the formal system visible to all, in which, to give one small but telling example, officials receive extraordinarily modest salaries yet enjoy a lifestyle that implies rather more substantial means. This dichotomy has a long history in Russia. In the Soviet Union, apparatchiks were officially part and parcel of the people, yet they stocked up on the sly in special stores chock-full of bourgeois delicacies deemed unnecessary for the proletariat. And the dichotomy went beyond sausage. In fact, the party nomenklatura inhabited a distinct "legal" realm, subject to unwritten laws of its own but free from many of the official constraints that bound the general populace. The Slavist Edward Keenan argued in a brilliant mid-1980s article titled "Muscovite Political Folkways" that the cleavage between the formal and informal has been central to a centuries-old Russian political culture in which the illusion of an all-powerful tsar provided crucial cover for bickering informal elite groups that hold real, if diffuse, power.
While Russian history is anything but a changeless still life stretching back across the centuries, Keenan's insight is the key to an accurate understanding of how Russia is ruled today. Formally, power is increasingly concentrated in the hands of Putin, with the democratic veneer of the 1990s wearing thin to reveal mechanisms of managed democracy and bureaucratic control. Informally, various groups -- clans bound together by ties ranging from regional affiliation to some sort of corporate identity to the shared experience of mutual enrichment in the 1990s -- vie for money, influence, and access to the formal mechanisms of state power.
Since most of the sources and virtually all of the participants are silent on the actual workings of the system, any attempt to describe it in detail must rely on the moments when feuds -- which call to mind Winston Churchill's famous comparison of Politburo rivals to "bulldogs fighting under a carpet" -- break out into the open, giving us a glimpse of a gear here, a cog there. The ongoing ruckus over Mikhail Khodorkovskii and Yukos is one such example.
Before he ended up in jail and the tax police set upon his company, Khodorkovskii was merely Russia's richest man and Yukos the country's most successful private oil company. Khodorkvskii was a big player in the informal system, the head of a clan that came together amid the rubble of the Soviet Union and fused into a financial force during the privatizations of the 1990s. Then something went wrong. The conventional wisdom holds that Khodorkovskii fell afoul of Putin by getting involved in politics and is now paying the price. But Khodorkovskii's support for a few fading opposition parties in a nominally democratic system of dubious relevance never represented a real threat to anyone (nor was he the only person playing this game). More importantly, the assault on the Khodorkovskii clan that began in July 2003 has proceeded in stops and starts that betray the controlling hand not of the unitary state aiming to crush a political rival, but rather disparate groups using the mechanisms of the state for their own ends.
The summer of 2004, for example, witnessed a series of confusing and contradictory statements by high-ranking officials and rulings by courts that set Yukos stock on a zigzag jag until Russia's fledgling stock market finally gave up and stopped paying attention. Brokers and analysts concluded that insiders were using official statements to stir the pot and reap the benefits. Meanwhile, in the big picture, a stuttering series of court actions has pushed the company ever closer to a forced asset sale, with the beneficiary as yet unclear.
The question of "Why Yukos?" is beside the point. The point is that if we assume that a unitary state ruled by an all-powerful Putin is facing off against Yukos, it is engaged in a vast and infinitely complex conspiracy (and inflicting considerable damage on Putin's image as a reform-minded leader). We have little evidence to suggest that the Russian state as currently constituted is capable of such coordinated planning and filigree execution. A much more plausible explanation is that rival clans are tussling beneath the carpet for a piece of the pie, each employing the mechanisms of the state when it can but none capable of controlling enough of them for long enough to enforce a coherent strategy. The levers work, and each action -- a court decision, the ruling on appeal that reverses it a week later -- is coherent in and of itself. Yet the multiplicity of actors and interests renders the overall picture chaotic. It is entirely characteristic of the system Keenan described that the actors should strive throughout to maintain the illusion of the one strong, unitary actor -- the state -- whose existence their sparring belies.
The precedence of the informal over the formal can do more than ruin the capitalization of a multibillion-dollar oil company. More damagingly, it can wreak havoc with national security. Formally, the Federal Security Service (FSB) is charged with defending the nation against such evils as terrorism and separatism. Informally, many FSB officers place other interests above those of the state they are supposed to serve. As an active reserve FSB officer told "Moskovskie novosti" on 10 September, the results can be dire. He said: "We know the structures where [Chechen] militants make money. For example, by trading in foreign cars. But as soon as the FSB starts to close in on them, suddenly the Prosecutor-General's Office, customs agents, the Interior Ministry, and fellow FSB officers from other departments get involved. They all make it clear that the people the FSB is interested in are 'their people.' An absurd situation obtains: the financing for terrorists takes place with the help of the law-enforcement organs that are trying to fight terrorism. I know special-forces personnel who help semi-criminal businessmen make money here in Moscow. Later, risking their lives in Chechnya, they battle militants who fight with weapons bought with that money."
And there's the rub. As long as this crazy-quilt system is squabbling with itself, it can maintain the appearance of relative order. But as soon as a real foe emerges, be it Chechen terrorists or some equally committed opponent, it finds itself hamstrung for the simple reason that the real system is not what it appears to be on paper and the people who are supposed to make it work are busy doing other things.
This does not mean that Putin's power is a sham. Formally, he wields sweeping power. But the use of that power is limited by pervasive corruption, inefficiency, and incompetence. More importantly, the president's ability to act as a truly authoritarian ruler rests on the consensus of the informal actors who make up the real power structure (although many, but not all, of these actors also occupy high-ranking posts in the institutions of government, of course). As the fall of the Khodorkovskii clan shows, the state's repressive mechanisms can be mobilized against any single group. It is a foolish illusion, however, to think that Putin can single-handedly use the powers he possesses on paper to remake the underlying system by moving against all of the players whose informal consensus is the system's substitute for bedrock. In the end, this is the greatest limitation on Putin's power.
The deepening cleavage between the formal and informal under Putin has two crucial implications for Russia's future. The first is that any and all reform projects will fail unless stronger formal institutions begin to take shape. Not only is there no sign that this is happening, informal centers of power are actively obstructing any movement in this direction. The second implication is that if and when Russia faces a real crisis, whether in the form of an ongoing terrorist threat or budgetary shortfalls occasioned by falling oil prices, the stability that is now seen as Putin's one undeniable achievement might prove as ephemeral as the virtual formal system on which it rests.
POLITICAL CALENDAROctober: President Vladimir Putin to visit China
October: International forum of the Organization of the Islamic Conference to be held in Moscow
October: State Duma to vote on ratification of the Kyoto Protocol, according to Deputy Prime Minister Aleksandr Zhukov.
4-8 October: Council of Europe Parliamentary Assembly will convene
7 October: President Putin's 52nd birthday
10 October: Mayoral election in Magadan
19 October: State Duma to begin hearings on proposed changes to election legislation
23-26 October: Second anniversary of the Moscow theater hostage crisis
25 October: First anniversary of former Yukos head Mikhail Khodorkovskii's arrest at an airport in Novosibirsk
28 October: Federation Council to hold a roundtable discussion of proposed election-law amendments
31 October: Presidential election in Ukraine
November: Gubernatorial election in Pskov and Kurgan oblasts
November: Italian Prime Minister Silvio Berlusconi to visit Moscow
14 November: Mayoral election will take place in Blagoveshchensk
20 November: Sixth anniversary of the killing of State Duma Deputy Galina Starovoitova
22 November: President Putin to visit Brazil
December: A draft law on toll roads will be submitted to the government, according to the Federal Highways Agency's Construction Department on 6 April
December: Gubernatorial elections in Vladimir, Bryansk, Kamchatka, Ulyanovsk, and Volgograd oblasts; Khabarovsk Krai; and Ust-Ordynskii Autonomous Okrug
December: Presidential elections in Marii-El and Khakasia republics
5 December: By-elections for State Duma seats will be held in two single-mandate districts in Ulyanovsk and Moscow
5 December: Gubernatorial election will be held in Astrakhan Oblast
29 December: State Duma's fall session will come to a close
January 2005: President Putin to visit Poland for the 60th anniversary of the liberation of the Auschwitz concentration camp.
1 February 2005: Former President Boris Yeltsin's 74th birthday
March 2005: Gubernatorial election in Saratov Oblast