Constitutional Path-Dependency in the Republics

A. Copying All-Union Institutions at the Republican Level

Knowing how the Soviet presidency evolved during the twilight years of Gorbachev’s rule is essential to understanding the separation of powers systems that emerged in the republics.

these republics’ leaders for his own institutional reforms. When he was asked in February 1990 about how the relationship among multiple future presidents at the republican level might be regulated, Shakhnazarov urged him to say that the Soviet Union should have just one President. But Gorbachev answered by saying that he was ‘not opposed to thirty-four presidents, an answer no doubt given to placate any potential criticism within the republics.^[609]

Although creating republican presidencies may not have been part of Gorbachev’s plans, once the all-union presidency was established, he found there was little he could do to stop leaders in the republics from following suit. After agreeing to give Gorbachev additional powers and prerogatives, the leaders of the republics demanded to have the same institutions as existed in Moscow. Gorbachev firmly believed his hands were tied.

[S]upported the establishment of the office of President and my candidacy, at the same time he spoke strongly in favor of using the same model in the republics, in order, as he put it, ‘to eliminate contradictions between the notion of the presidency and the desire of the republics to broaden their authority’. In other words, the republics immediately realized that the central power was being strengthened and, not wishing to yield the independence they had gained, decided to seize the opportunity to secure themselves. Nazarbayev, an experienced and clever politician, was playing a no-lose game.^[610]

Yet the desire to create presidencies on the part of the republics should not have surprised Gorbachev either, given that each of the 15 union republics had already reorganised its other institutions to copy those at the federal level. Less than a year after competitive elections were held for the USSR’s Congress of People’s Deputies in March of 1989, the republics held popular elections for their own new legislatures. These elections extended over a period of nine months in 1990. Twelve of the republics elected new legislatures between January and March, another did so in May, and two more held their elections in September and October 1990. The close timing of these republican parliamentary elections in 1990, as Table 7.1 shows below, is evidence that they were all influenced by events happening at the time in Moscow and at the all-union level.^[611]

154 Eugene D Mazo

Source: Based on information provided in S White, R Rose and I McAllister, How Russia Votes (Chatham House, 1997) 31; and DC Booker, ‘Founding Presidents of Soviet Successor States: A Comparative Study" (2004) 12(1) Demokratizatsiya 133-45, later amended by the author.

Likewise, soon after Gorbachev was elected to the Soviet presidency in March 1990, the new republican legislatures began drafting legislation to create repub­lican presidencies - and, on their heels, official premierships - to match what was happening in Moscow. Gordon Hahn calls what followed ‘the parade of presidencies’.^[612] As evidence that the ideas were taken from above, we might note how the majority of the new presidential terms were to be exactly five years in length, just like Gorbachev’s. Following Gorbachev’s example, most of the republi­can leaders also came to occupy their new presidential offices through a two-step process. First, these leaders were elected chairmen of their republican parliaments. As Table 7.1 shows, all of the republican leaders were elected chairmen of their respective parliaments between April and October 1990. The only exceptions to this general rule were the leaders of Belarus and Tajikistan - Stanislau Shushkevich and Rakhmon Nibayev, respectively - who were chosen to lead their respective parliaments more than a year later, in September 1991, after their predecessors had been deposed for their involvement in the August 1991 coup.^[613]

The second step was taken when these republics then created presidential institutions so that their parliamentary leaders could be elected presidents. The sequencing of these elections again replicated the example set by the centre. However, unlike Gorbachev’s election to his presidency, a crucially important difference in this second step was undertaken in the republics - namely, rather than be elected to the presidency by their republican parliaments, the repub­lics’ leaders overwhelmingly chose to stand for popular election.^[614] This was done deliberately to strengthen their authority vis-a-vis Moscow and to send a message of rivalry to Gorbachev, who had not been popularly elected.

When the Soviet Union ceased to exist, these republics’ Presidents became the founding fathers of new countries - indeed, sometimes unexpectedly so - when a previously republican institution, the presidency, suddenly became a new national institution. The sequencing of events is important here, for all of these presidential institutions were created, and most of these Presidents elected, before these coun­tries gained their independence. As a result, when the time came for these states to write new constitutions as independent countries, a ‘ President’ already played a role in running them. This meant that each of these states now possessed an additional stakeholder who would seek to participate in the constitution-making process and would have an interest in its outcome. Although the rush to form presidencies in the republics has been documented elsewhere, it is the timing that I wish to emphasise here. For had these parliaments tried to create presidencies after independence, had independence come sooner or had independence never come at all, the outcome might very well have been different.

Figure 7.1 Sequencing path-dependency during the Soviet transitions

(constitutional system)

B. The Independence of the Council of Ministers

In his memoirs, Gorbachev recalls being frustrated in his unsuccessful efforts to gain control of the federal Council of Ministers. His admits that: ‘After making the proper decision to introduce the office of the president, we failed to think the issues though to the end [on the Council of Ministers].’¹¹⁴ What he failed to think

¹¹⁴ Gorbachev, Memoirs (n 40) 324.

Path-Dependency in Soviet and Russian Constitution-Making 157 through was how, specifically, the Soviet separation of powers should work and what mechanisms had to be put in place in order for the government to be effec­tively controlled by the presidency. As Gorbachev writes:

The concern of our government for its powers was the major factor that worked against the consistent introduction of a presidential republic. Ryzhkov and his associates feared that the Council of Ministers would be downgraded, shoved into the background, transformed... They strongly objected, while at the same time I did not have sufficient grounds or any intention to quarrel with Nikolai Ivanovich [Ryzhkov]. I was hear­ing convincing arguments from my advisors that the President should not be saddled directly with the burden of managing the economy.

However, even if Gorbachev’s advisors had steered him elsewhere, adopting an American-style system would have been difficult. It would have meant subordi­nating an institution with a very long history - a history which could be traced from pre-revolutionary times to its evolution into the Sovnarkom in 1918, its transformation into the Council of Ministers in 1946, its official recognition in the Constitution of 1977 and its reincarnation as the Cabinet of Ministers in 1990 - under a presidency that was barely a year old. Whether this could have been accomplished is a matter of conjecture. Yet, the fact remains that it was not accom­plished in the Soviet Union. In retrospect, Gorbachev reasoned that he would have needed to adopt a new constitution, rather than merely ‘patching up’ and amend­ing the existing one, to achieve this goal.^[618]

Yet the Soviet republics did adopt new constitutions and the outcome proved to be not very different; a dual-headed, semi-presidential separation of powers system still emerged as the model of choice. Indeed, equally important to what was happening in Moscow was the story of how each republic mirrored the centre in establishing its new governmental institutions. By mid-1991, many of the repub­lics had turned their republican Councils of Ministers into Cabinets of Ministers and renamed the post of Chairman of the Council of Ministers to become ‘ Prime Minister’. Soon, constitution-making in these republics would also evolve into a battle over whether the President or parliament would have ultimate control of the Cabinet of Ministers. The historic and partly autonomous role of this unique exec­utive institution was contested at the republican level just as it was at the all-union level during the constitution-making process in each republic. Indeed, when the time came for these republics to adopt new constitutions after independence, their framers found that their politics forced them to copy the Soviet constitutional

model. When it came to creating new political institutions, Gorbachev would later say: ‘Theory is theory, but practice - real politics - always has the last word.' ^[619] This chapter has tried to show that while that may be true, ‘real politics' also does not happen in a vacuum. Rather, the real politics of constitution-making are often the result of a historical sequence, one in which one temporal stage influences the direction of the next. This is what happened in Russia and its neighbouring former Soviet republics when they gained independence from the Soviet Union and it came time for them to design the separations of powers models for their new constitutions.