Gorbachev’s Constitutional Reforms

A. Original Reform Plans

When Gorbachev became General Secretary of the CPSU in March 1985, his agenda did not include amending the Soviet Constitution or creating a presidency.

When the party and the ministries proved resistant, Gorbachev concluded that the only way to achieve his economic reforms would be to breathe new life into the political system.^[543] He wanted to accomplish this by democratising state institutions and reducing the influence of the party over them. He envisioned creating several new political institutions. He intended to put them in place by amending the Soviet Union's existing Constitution. In 1987, on the date of its tenth anniversary, the Soviet Constitution had been amended only once. By late 1988, nearly one- third of its articles would be rewritten.^[544] Though numerous changes took place, here I wish to focus only on the constitutional changes of the late Soviet period that affected the country's separation of powers. Three such changes were partic­ularly important. These included Gorbachev's efforts to democratise the Soviet legislature, to downgrade the ‘ leading role' of the Communist Party and to create the new institution of a presidency.^[545]

B.

The first step towards reshaping the Soviet political system began with a wave of constitutional amendments proposed by Gorbachev at the end of 1988. With the five-year mandate of the Supreme Soviet coming to an end in 1989, Gorbachev publicly announced in June 1988, at the Nineteenth Party Conference, that the old Supreme Soviet would be restructured and a new, democratically elected parlia­ment would be created.^[546] In late 1988, the Presidium of the Supreme Soviet formed a working group, headed by Anatolii Lukianov, to draft the constitutional amend­ments that would create this new two-tier parliament. Fearing a backlash from the Communist Party's leadership, whose own influence would be threatened by a democratic parliament, Gorbachev relied on a small group of advisors to draft the detailed rules for his new legislature.^[547] The Supreme Soviet then amended the existing Constitution on 1 December 1988, changing Chapter 15, which dealt with the functions of the old USSR Supreme Soviet, to create a new parliament in its place.^[548]

The lower tier of this new parliament, the Congress of People's Deputies, was to consist of 2,250 deputies. Of these, 750 would be elected from single-member constituencies that were apportioned strictly based on population; 750 would be elected from national-territorial districts that were meant to represent the union's various ethnic groups and territories; and 750 would be selected by societal organ­isations and unions, including the Communist Party, which was guaranteed 100 deputy seats of its own. During its first meeting, the Congress of People's Deputies itself was to elect, from among its members, the upper tier of parliament, to be called the Supreme Soviet, which would be responsible for legislating on a more full-time basis. This new Supreme Soviet was to be composed of 542 deputies, who would be divided evenly between its two chambers, the Council of the Union and the Council of Nationalities.

The new separation of powers system put in place also allowed the Congress to unilaterally appoint the Council of Ministers - not just formally, but also func­tionally now. Before long, the Congress of People's Deputies and the Supreme Soviet began asserting greater control over the Council of Ministers. For example, in the summer of 1989, the Congress appointed a new Council of Ministers by considering, for the first time, the nomination of each minister to the government individually rather than the government's slate as a whole.^[550] Although Nikolai Ryzhkov, the Chairman of the Presidium of the Council on Ministers, was returned to his old position, the Supreme Soviet rejected nine other nominees and even appointed one minister who was not a member of the Communist Party.^[551] Given that the Soviet Union's parliament now effectively had the sole power of appointing and recalling the government, Gorbachev had created more or less what looked like a parliamentary system.^[552] However, getting used to the new separation of powers system was not easy. Ryzhkov, for his part, admitted that ‘a situation of uncertainty' had been created between the Council of Ministers, the Communist Party and the Congress of People's Deputies, as the ministers, who were used to taking orders from the highest ranks of the party, now had to obey a different master.^[553]

C. Downgrading the Leading Role of the Communist Party

By the beginning of 1990, it had also become clear to Gorbachev that the Council of Ministers could no longer be effectively overseen by two large, cumbersome

Path-Dependency in Soviet and Russian Constitution-Making 143 legislative bodies.

The shifting balance of power within the Soviet political system did not exactly prove to be ideal for Gorbachev, who soon found that he possessed no formal institutional base from which to govern effectively. He could no longer rely on his role as General Secretary of the Communist Party, since its authority was waning. His position as Chairman of the Supreme Soviet did not provide him with enough power to oversee the Council of Ministers either. To fill the need for authority, he decided to create an executive presidency.^[555] In March 1990, Article 127 on the role of the presidency was added to the existing Soviet Constitution. At the same time, Article 6 was amended so that the Communist Party no longer played the leading role in political life.^[556] These tit-for-tat institutional reforms proved to be a ‘critical juncture’ in the history of Soviet constitutionalism. As Gorbachev himself would later explain: ‘The amendment of article 6 and the addition of article 127 to the basic law were organically related.

D. Creating the Soviet Presidency

Creating a presidency had been considered at several earlier points in Soviet history. A plan for a Soviet presidency was debated when the 1936 Constitution was adopted, although Stalin ultimately rejected the idea.^[558] In 1964, the idea of a presidency was considered again, this time by Nikita Khrushchev, who recom­mended that a presidency be created to the constitutional commission that was then preparing his new constitution. A chapter on a new presidency had in fact been drafted for that document, but when Khrushchev was forced out of power later that year, discussion of creating a Soviet presidency ceased. The constitu­tional commission was dissolved after Khrushchev’s ouster, and by the time another constitutional commission was reinstated in the 1970s to begin drafting a new constitution for Leonid Brezhnev, its members no longer saw the need to create a national presidency.^[559]

Gorbachev also initially resisted the idea of creating a national presidency. In 1985, after he rose to the position of General Secretary, two of his closest advisors, Georgii Shakhnazarov and Vadim Medvedev, put forward the idea of creating a presidency for the Soviet Union.^[560] But Gorbachev reacted coolly to it. He believed that a strong President would overwhelm the power of the parliament and that this institution would only serve to re-establish a ‘cult of personality’ in Soviet politics.^[561] In his memoirs, he would later write: ‘I have to admit that it took me some time to realize that it was necessary to crown our new institutional structure with the office of President.

During the summer of 1988, when the idea for a presidency was discussed seriously by Gorbachev and his advisors for the second time, few of them had any solid understanding of what form this institution would take. Some of Gorbachev’s advisors urged him to unite the roles of General Secretary of the Communist Party and Chairman of the Council of Ministers into one. Others argued that the govern­ment and the party needed to remain separate. Still others insisted that an office

Path-Dependency in Soviet and Russian Constitution-Making 145 of an elected presidency should be superimposed over these other institutions or made to exist alongside them.^[564] Gorbachev continued to resist the idea of a presi­dency because he believed the institution would concentrate too much power in the hands of a single person’. ^[565] As a compromise, he agreed to create the position of the Chairman of the Supreme Soviet.^[566]

Nonetheless, the idea of creating a presidency continued to surface within society. Fedor Burlatskii, a noted scholar and former member of the working group that tried to draft the never-completed constitution for Khrushchev in the 1960s, published an article outlining the benefits of the presidential model in the summer of 1988, after the Nineteenth Party Conference.^[567] In 1989, when Andrei Sakharov circulated a new draft constitution for the Soviet Union in the Congress of People’s Deputies, that document contained a role for a popularly elected President who was to serve for a five-year term.^[568] However, what finally convinced Gorbachev of the need to create a presidency was not this discussion going on in the public sphere, but rather the discussion that took place among his close-knit group of advisors. Reforms had been progressing slower than expected and Gorbachev came to realise that in order to proceed with his economic agenda, the Soviet government could not continue to be overseen by the Congress of People’s Depu­ties and Supreme Soviet. Once he had come to accept this, in late 1989 he again began discussing with Shakhnazarov and Medvedev the idea of creating a Soviet presidency.

At this point, a debate among Gorbachev’s closest advisors proceeded to take place over what form of presidentialism should be adopted. The two main models debated were that of the French Fifth Republic and the US.^[569] Gorbachev initially favoured the American model. His argument in favour of pure presidentialism was based on his belief that the authority of an American-style President would give him better leverage in implementing difficult reforms. He also believed a president would be better suited to running a federation.^[570] Shakhnazarov and Medvedev lobbied Gorbachev to adopt a French-style presidency.^[571] Shakhnazarov argued that having a separate premier run the government would lessen the administrative

burden placed on the president. As he explained in his memoirs: ‘I stood for the French model, most of all, because it allowed the president to keep his role as an arbiter, rather than to become a whipping boy after every setback the government might have. While the American model might not be bad, it better suits a country with a stable political system and with a high level of economic attainment.'^[572] Shakhnazarov probably got the idea for adopting the French system from his friend Fedor Burlatskii.^[573] However, it was Shakhnazarov who first described the proposal to Gorbachev in a memorandum that he co-authored with Medvedev in the autumn of 1989 and that he thereafter circulated to Gorbachev on 29November 1989.^[574]

Although Gorbachev's advisors believed they were adopting French-style semi-presidentialism in principle, it is obvious from their negotiations that they did not know how it would work in practice. Many details concerning the inter­nal dynamics of their new semi-presidential system were left to be ironed out. For example, should the Soviet President have the power to dissolve the Congress of People's Deputies and Supreme Soviet as the French President had to dissolve the National Assembly?^[575] Such questions seem to have been hotly debated by the members of the constitutional commission's working group responsible for drafting changes to the existing Constitution's text. Yet these debates, unlike those of the Congress of People's Deputies and the Supreme Soviet, were never published.^[576] One thing we do know is that this working group, which was chaired by Gorbachev himself, decided not to give the President the right to dissolve parliament.^[577] Gorbachev believed that this power would only increase potential elements of authoritarianism in the office of the presidency.

The records of the negotiations between Gorbachev and his advisors make clear that several of the powers that were given to the new presidency came about in an effort to settle internal disputes among the members of the working group. For example, Anatolii Lukianov believed that the president should have the right to chair the meetings of the Council of Ministers, the Supreme Soviet and Congress, while others disagreed, arguing that this would entirely defeat the logic behind the separation of powers. Only the issue of giving the President the power to dismiss the Council of Ministers received universal support.^[578] No doubt, the details concern­ing the internal workings of this system were not understood by the deputies

Path-Dependency in Soviet and Russian Constitution-Making 147 when the constitutional changes were presented to parliament for approval. At a meeting of several deputies that took place in February 1990, at which the future presidency was discussed, Egor Kuznetsov recalled that many deputies did not actually see much difference between the post of a President and that of Chair­man of the Supreme Soviet. As long as one of these posts promised to protect Gorbachev from the Communist Party, they were willing to give their support to whatever institution was created and whatever constitutional amendments were sought.^[579]

At the time that these discussions took place, Gorbachev’s advisors also began debating a much more salient issue - how the new President would be elected. While everyone realised that the President would have more authority if he were popularly elected, most of Gorbachev’s advisors conservatively leaned towards having the Congress of People’s Deputies elect the Soviet President the first time around. The time needed to organise an election and its unpredictable results, especially given the rising popularity of Boris Yeltsin, were two of the reasons given against holding a popular election, which Shakhnazarov, in particular, opposed. Yet there were other matters of substance that also persuaded Gorbachev’s advisors against holding a popular election. For example, to secure the popular election of a new Soviet President would have raised delicate procedural issues. Gorbachevs advisors thought that the new President would need to garner the support not just of a majority of citizens but also of a majority of the republics, given that the Soviet Union was a federation.^[580] After a lengthy debate, his advisors decided to write the law on the presidency in a way that would allow the Soviet Union’s first President to be selected by its parliament - the Congress of People’s Deputies.^[581]

The Supreme Soviet approved Gorbachev’s proposal to establish the Office of the President of the USSR on 27 February 1990. Two weeks later, the Congress of People’s Deputies officially amended the country’s Constitution to create this office. This was accomplished by inserting a Chapter 15-1 (on the powers of the presidency) into the Constitution of 1977, wedging it between Chapter 15 (on the Congress and Supreme Soviet) and Chapter 16 (on the Council of Ministers). On 14 March 1990, the Congress then elected Gorbachev as the Soviet Union’s first President. Although Gorbachev ran unopposed, he was surprised to find that only 59 per cent of the deputies voted for him.^[582] Just as this presidency was created, the language referring to the leading role of the Communist Party was removed from the Constitution. This allowed the presidency to take the place of the party within the country’s new political hierarchy, completing the re-alignment of power that

had been happening all year.^[583] At the same time, the Soviet legislature found it had to cede much of its influence and stature to this new presidency. One scholar referred to the new Soviet presidency as a ‘hastily-conceived institutional reform’.^[584]

E. Gorbachev’s Evolving Powers: March to September 1990

The Soviet presidency provided Gorbachev with many new powers, including the power to veto legislation, appoint government officials and sign international treaties. He was given the power of calling national referenda, declaring martial law and over­ruling government decisions that he believed violated the Constitution.^[585] While the new Soviet President also had the power to propose candidates for the premiership, it seemed from the text of the Constitution that the Council of Ministers would still be controlled by parliament. For instance, rather than being given the power to ‘nominate’ the Chairman of the Council of Ministers, the new Article 127-3(6) stated that the President shall ‘submit to the USSR Supreme Soviet candidacies for the post of Chairman’. Meanwhile, Article 127-3(7) did not grant the President the power to ‘dismiss’ this Chairman outright, but, rather more delicately, only gave him the power to ‘raise the question before the USSR Supreme Soviet of the resignation or of accepting the resignation of the USSR Council of Ministers’. If the President wanted to remove individual ministers, he could do so only ‘in agreement with’ the Chairman of the Council of Ministers. Meanwhile, Article 129 tied the Council of Ministers’ term to that of the Supreme Soviet, not to that of the new President. Gorbachev could not appoint ministers without the Supreme Soviet, but the Supreme Soviet had the power to force the resignation of the government on its own.^[586]

In order to get the presidency through Congress, Gorbachev was forced to agree that several important changes would be made to the amendments creating the pres­idency. One of these was that the President not be given the sole right to declare a state of emergency in the USSR; instead, he had to wait for the Supreme Soviet to agree to such a measure. Another, as mentioned, was that the President also lost the power to dismiss the Chairman of the Supreme Soviet. A third was that the President’s power to veto the Supreme Soviets laws was taken away.^[587] Nonetheless, according to Article 127-3(9), the President was given the power to suspend the decrees of the Council of Ministers. And while he did not have the right to issue decrees himself, Article 127-7 allowed him to promulgate ‘edicts’ that had binding force.

Before long, a ‘war of laws' ensued as Congress' laws, the Council of Ministers' decrees and the President's edicts began to compete for dominance in an unintel­ligible chaos of legislation, with no enforcement mechanism in existence to ensure that the proper hierarchy was being respected.^[588] Since Gorbachev was not given the power to dissolve parliament, no simple resolution to the conflict could be found.

To deal with the situation, Gorbachev returned to the Supreme Soviet in September of 1990, when the Soviet presidency was barely six months old, to seek additional powers. He argued that emergencies in the country were growing ‘while the system of executive power is not functioning'.^[589] His immediate concern was his inability to get the Council of Ministers and the central ministries to respond to his edicts, which often went ignored.^[590] On 24 September 1990, the Supreme Soviet granted the Soviet presidency temporary additional powers for a six-month period, until 31 March 1991.^[591] These new temporary powers included the right to issue unrestricted decrees concerning the economy, law and order, and government personnel, the right to inject direct presidential rule in troubled regions, and the right to create any new bodies or structures necessary to ‘accelerate the formation of an all-Union market and ensure cooperation between Union and autonomous regions’.^[592] However, the new constitutional changes said nothing about how the Soviet President would be able to enforce his new decree powers, particularly over the Council of Ministers. Speaking to the Supreme Soviet on 26 September 1990, the jurist Anatolii Sobchak lamented the absence of a vertical power structure in the Soviet Union. The result was a situation where ‘there is a president who cannot put anything into effect, and a Council of Ministers that cannot do anything’^[593]

F. The Move Towards Pure Presidentialism: November 1990

With neither his edicts nor his new decrees being obeyed, Gorbachev decided in November 1990 that he would try to reorganise the separation of powers along the lines of a pure presidential system.^[594] ‘Having opted in early 1990 for a French­style executive, with a president governing through a prime minister and council of ministers, explain Brenda Horrigan and Theodore Karasik, ‘Gorbachev now sought to establish presidential government based on the American model, which he hoped would arrest the country’s deepening economic and social crises.'^[595] The new changes granted Gorbachev more direct control of the government ministries, which before had always been overseen by a Prime Minister. As part of the new reforms, the Council of Ministers was transformed into a new ‘Cabinet of Ministers’.

The overarching goal of moving from a Council of Ministers to a Cabinet of Ministers was to subordinate all executive power under a single institutional hier­archy. The new Cabinet’s leadership was still to be in the hands of a Prime Minister. However, whereas the previous Council of Ministers had been subordinate to the Soviet legislature, the Cabinet of Ministers reported to the President directly.^[596] In creating this new Cabinet, Gorbachev managed to amend the Constitution in three subtle but important ways. First, he made it so that the Supreme Soviet no longer confirmed (in Russian ‘utverzhdaet’) the Cabinet of Ministers, but merely gave its agreement (‘daet svoe soglasie’) to the President’s nominees.^[597] Second, he made it so that the President alone now had the power to hire and fire leading members of the government as well as the heads of ministries. Finally, whereas previously the president proposed ministerial candidates to parliament ‘in agreement with the Chairman of the Council of Ministers’, Gorbachev made it so that now the Presi­dent formally appointed them (‘naznachaet’) by decree.^[598] Parliament still retained the power to overturn a presidential appointment, but the presumption was that this would rarely, if ever, happen. In instituting these reforms, Gorbachev tried to change the order of command, so that the Soviet government would answer to the presi­dent first and to the legislature second. As Eugene Huskey elaborates: ‘Parliament was increasingly forced into “take or leave it” decisions on executive proposals, a traditional mark of executive dominance of the legislature.’^[599] Perhaps the strongest symbol of this shift was the constitutional change regarding the tenure of the Cabinet of Ministers. Whereas the term of the Council of Ministers had always been tied to the election of the Supreme Soviet, it was now linked directly to the term of Office of the President.^[600] Thus, when the election of a new President occurred, the Cabinet of Ministers would submit its resignation and allow the new President to pick a new team.^[601]

The creation of the Cabinet of Ministers was also accompanied by a proliferation of new presidential institutions. In addition to the Security Council and Federation Council, which had been added in March 1990, the Office of a Vice Presidency was now added to the presidential administration. Gorbachev had fought for this office in the past, but without success.^[602] Now, it was meant to provide a way for a presidential loyalist to take the place of the President if he should become incapacitated and not be able to carry out his duties. The amended Constitution specified that if the President died, the Vice President would assume the post of President for 60 days, until a new election could be held.^[603] Gorbachev nominated Gennadii lanaev to be the Soviet Union’s first Vice President, and the Congress confirmed him on 27 December 1990.^[604] An Office of Prime Minister was also created. Whereas in Soviet times the Chairman of the Presidium of the Council of Ministers had carried the unofficial title of ‘Prime Minister', now there would be an official Prime Minister who would direct the work of the Cabinet of Ministers. Once again, the Soviet President gained the right to nominate this indi­vidual before his candidacy was submitted to parliament for approval. In January 1991, the Congress of People’s Deputies approved Gorbachev’s nominee, Valentin Pavlov, to replace Nikolai Ryzhkov, and thus to become the first official Prime Minister of the Soviet Union.

G. The August 1991 Coup and its Aftermath

Gorbachev claimed his new constitutional changes were engineered to place the Cabinet of Ministers more strictly under the presidential hierarchy to reflect the ‘American model’. But even after a third round of changes, the constitutional system remained semi-presidential. In fact, it could be argued that Gorbachev’s late 1990 constitutional reforms helped preserve semi-presidentialism much more than they undermined it. This was because the Soviet Union’s new Prime Minis­ter and Vice President worked in tandem to strengthen the powers of their own offices, not Gorbachev’s, and eventually they conspired to depose him altogether. Gorbachev had repeatedly tried to draw a more direct line of authority down from the Soviet presidency in an effort to streamline the Soviet Union’s executive branch. Yet when Pavlov became Prime Minister, he moved things in the opposite direc­tion. Pavlov pushed for the Cabinet of Ministers to free itself from presidential control and for the Prime Minister’s powers to be increased. Shortly after taking office, he also decided to move the physical offices of the Cabinet of Ministers to a new location outside the Kremlin. In June 1991, he even went to parliament to seek additional powers for his new office, arguing that the President’s working day was too long and that there were many tasks he could not accomplish alone.

Gorbachev was trying to strengthen the new presidency and Pavlov’s attempt to expand prime ministerial power flew in the face of what Gorbachev’s November 1990 reforms sought to accomplish. Rather than support Gorbachev, lanaev backed Pavlov, assuring the press ‘that Pavlov’s search for greater power was not politically motivated’.^[605] Gorbachev soon convinced the Congress to deny his Prime Minister expanded authority. Ultimately, Gorbachev’s efforts to strengthen the presidency - and to take power, in turn, away from the Cabinet of Ministers - led to his own undoing. The Cabinet of Ministers included many conservatives who were desperate to preserve the Soviet Union. Joining forces, they staged a coup against Gorbachev in August 1991. This coup was launched on the eve of the signing of a new Union Treaty, a document that, if passed, would have stripped the Cabinet of Ministers of considerable power. Many ministers supported the coup. As Horrigan and Karasik observe, ‘those who supported the president’s ouster were figures who had a long history within the Government apparatus’.^[606] After the coup, the Soviet ‘government’ lost most of its powers. Leaders from the republics insisted that Gorbachev’s Federation Council, which had been created in March, now be replaced by a State Council, a new institution composed of the leaders of the 15 union republics. Gorbachev had but one vote out of 16 in this new institution, meaning that his own power became diluted. Soon thereafter, Yelt­sin and his allies launched an assault on the Soviet ministries, expropriating their property and assets for the Russian republic. During the final days of the Soviet Union, the institution that had once been known as the Council of Ministers was controlled by neither the President nor parliament. In a sense, perhaps it no longer mattered, given that on 25 December 1991, the Soviet Union itself ceased to exist.

IV.