President Medvedev and the Contested Constitutional Underpinnings of Russia's Power Vertical

Abstract

Abstract: The author investigates Russian federalism and the constitutional underpinnings of the power vertical, looking specifically at the Constitutional Court's December 2005 case about the appointment of governors. The court's decision upheld the constitutional notion of a "unified system of executive power" as the primary legal justification for the power vertical. However, not all of the justices agreed with this reading of the Russian constitution, and the dissenting special opinions provide alternative interpretations of the Russian constitution's division of power. The author also analyzes President Dmitry Medvedev's November 2008 state of the nation address and Medvedev's unexpected call to reexamine and clarify the Russian constitution's requirement for a unified system of executive power. Keywords: constitution, elections, federalism, governors, power vertical ********** In his November 2008 state of the nation address, Russian president Dmitry Medvedev boldly extolled the virtues of the Russian constitution. According to Medvedev, the Russian constitution "upholds freedom and justice, human dignity and welfare, protection of family and Fatherland, and unity of our multiethnic people--not just as common values but as legal concepts." (1) However, despite this effusive praise, during the speech Medvedev also announced his openness to certain "corrections" to the constitution. Most notable, Medvedev called for increasing the terms of the Russian president and Duma representatives to six years and five years, respectively, an amendment that was swiftly enacted into law. Medvedev raised the specter of less flashy but more fundamental legal reforms as well. Interestingly, in his inaugural address to the nation, Medvedev chose to revisit several pillars of the so-called power vertical, the term generally used to describe Putin's highly centralized, Kremlin-controlled political system. Medvedev expressly called for a modification in the gubernatorial selection process, proposing that potential nominees should come from those parties that received the highest number of votes in the regional elections. Medvedev also raised Article 77 of the Russian constitution, one of the provisions that define the construction of Russia's federal structures. This article consists of two parts: Article 77.1 states that, subject to certain constitutional limitations, individual regions should be allowed to establish their own institutions of state power independently; Article 77.2 calls for a "unified system of executive power" over the subjects of the Russian Federation. (2) Medvedev specifically highlighted Article 77.2 in his state of the nation address and the need to clarify this provision's mandate for integrating Russia's federal and regional structures into a single system. From a constitutional standpoint, although Article 77.2 currently serves as the cornerstone of the power vertical, this provision remains one of the most ambiguous and unexplored clauses in the constitution. What does a unified system of executive power mean in practice? How does one reconcile this single system with other constitutional provisions assigning specific rights and powers to the regions? Indeed, how does one reconcile the two parts of Article 77? The most comprehensive legal analysis of this issue--and the power vertical in general--can be found in the Constitutional Court's December 2005 landmark decision to uphold then-President Vladimir Putin's law on the appointment of governors. (3) Along with the 1992 "Trial of the Communist Party" and the 1995 case on the legitimacy of the Chechen war, the 2005 appointment-of-governors case stands out as one of the court's most controversial political decisions in its nineteen-year tenure. Despite this decision's important legal and political ramifications, it has received only limited attention. Such neglect unfortunately has meant overlooking the court's (at times) convoluted reasoning in support of the power vertical and the ringing dissents filed against the majority opinion in the 2005 case. …