Article by Dmitry Medvedev for the journal Zakon [Law] and Rossiyskaya Gazeta.
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Article by Dmitry Medvedev for the journal Zakon [Law] and Rossiyskaya Gazeta
Anniversaries are a good time to reflect on the past and make plans for the future. Russia in 1993 and Russia in 2013 are two very different countries, and we have more reasons to be proud of Russia as it is today. This means that we have not wasted the last 20 years.
Each state passes through its own stages of development. However, there is a moment in the history of every nation when the state undergoes a qualitative change. This moment is adoption of a constitution, the main document of a nation, or its Fundamental Law, to use a term employed in both the legal sphere and society.
A constitution codifies the fundamental rules of political, economic and social life and provides a basic regulatory framework. Our Constitution is special. It is not just the product of social consensus, or a kind of social contract, like its European siblings; it is also a real tool of reform, which was what the majority of the Soviet people sought.
The path to becoming a rule-of-law state
Since 1993, the economic, social, and political system in Russia has been based on our new Constitution. Throughout these years, much has been said about the importance of the Constitution, its vast regulatory potential – which has yet to be fully uncovered as the country progresses in its development – and its role as the legal foundation of the market economy and private property. All of this is true. No less important, however, is the fact that the new Constitution adopted by national referendum proclaimed that Russia is anation governed by the rule of law for the first time in its thousand-year history. For the first time ever, the rule of law was recognised as an ideological principle governing the long-term development of Russia’s entire system of social relations. For the first time ever, the law – not the will of one man, political expediency, or the arbitrary unchecked power of the state – was declared the foundational principle of the nation’s life and development.
Constitutionalism in Russia has followed a thorny path. A hundred years ago, Russian lawyers argued that “a constitutional state is the practical realisation of a law-based state” (Fyodor Kokoshkin, Lectures on General State Law. Second edition. Moscow, 1912, p. 261). However, the short-lived constitution of the Russian Empire came to an end with the outbreak of World War I and the October Revolution. Throughout the 20th century, Soviet constitutions remained political declarations with no connection to real life. No matter what their provisions said, real power in the Soviet Union was held by the Communist Party, which spoke to the country through the directives of party bodies that were legally void even according to Soviet legislation. In the 1950s, the Politburo of the Communist Party, which was not even mentioned in the Soviet constitution, was the supreme authority in the country, endowed with unlimited power.
We remember the time when political and personal freedoms set forth in the constitution were flagrantly violated. The state believed it was unnecessary to even formally abide by the law, and operated under the assumption that its legitimacy derived not from the constitution but its victory in the struggle for power, and was the outcome of historical and ideological development.
The cruel irony is that some of the those who wrote the “Stalin” constitution of 1936, which enshrined broad legal guarantees for the exercise of human and civil rights, fell victim to the illegal reprisals suffered by millions of their compatriots.
Constitution and legal procedures
Today a constitution means more than just the text of the Fundamental Law. In every advanced country, it goes beyond constitutional laws and the bodies that uphold them. As a system of government and society, a constitution encompasses international treaties, laws, acts of heads of state and government, regulations of ministries and departments, the practices of the courts and cooperation between bodies of public authority and their relations with civil institutions, as well as regional and municipal authorities.
The legal process – how constitutional norms are established, modified and implemented – is now considerably broader and more complex than the legislative process of drafting and adopting amendments to the Constitution. It is no longer possible to gain a full understanding of a country’s political or economic system simply by reading the text of its constitution, as was the case two hundred years ago. It is essential to understand how a constitution is applied in practice, how government and civil institutions really interact, how government powers are exercised in the economic and social spheres, the role that different administrative bodies play and, finally, who makes major political decisions and how they are formulated as law.
Both the enforcement of constitutional provisions and even by-laws can change our interpretation of the Fundamental Law beyond recognition and alter the meaning of its provisions under the influence of rapid political, economic and social change. This gives modern constitutions flexibility and adaptability, but may also lead to serious problems in the development of the state as an administrative mechanism based on rule of law, and create a technical and administrative gap in the system of public authority. All the more so, as we still embrace the simple principle articulated by Montesquieu: “Laws must have the same meaning for everyone.”
In a rule-of-law state, every administrative decision, primarily in the socio-economic sphere, and every government decision affecting the rights and interests of people is formulated as legal acts. Hence, the law is the key mediator in public governance.
The drafting and adoption of legal acts as a form of administrative decision-making, as well as the full and accurate description of their institutional, economic and social meaning in the acts themselves, are matters of legal procedures. Prior to becoming a legal act, every regulatory instruction passes through numerous stages, including drafting, coordination, discussion at various levels, formal approval, publication and entry into force.
For instance, in Russia’s federal executive bodies, a regulatory act of the Government is drafted by the relevant ministry, coordinated with interested government bodies, opened to public discussion, subjected to legal and anti-corruption expertise, revised and debated by the Government Executive Office, and finally endorsed at a Government meeting. The procedures are even more complicated for an executive order of the President or a federal law. In many cases, the drafting and adoption of a regulatory act, with the participation of different stakeholders, may last from several months to several years. A critical challenge is preventing these multi-level procedures from distorting the political, economic and social meaning, not to mention the constitutional meaning, of these acts.
The Constitution of the Russian Federation defines the goals of public governance and the end result of the development of the state and society. These include, but are not limited to, protecting the rights and freedoms of people and citizens, ensuring the sovereignty of the nation, economic well-being, territorial integrity and national security, and social justice. These goals are codified in the Constitution (primarily in Chapter I) and represent the guidelines for government policy in all spheres. However, the Constitution does not prescribe the specific methods for achieving these goals. The provisions of the Constitution on the powers of the President, the Government, the Federal Assembly and the courts contain only the most general outline of these methods. However, this does not mean that the government administration has absolute freedom to choose the methods and means of achieving constitutional goals.
Law as an administrative tool
Legal approaches and procedures, as well as rules for drafting regulatory acts, are much more complex than even 10 years ago. And they are changing constantly as the economy, social institutions, and information and communication systems continue to change. Most importantly, they are evolving in step with administrative practices and methods, which are also growing more and more complex. Improving the effectiveness of the legal process is a priority. Russia’s national welfare and investment appeal depend on it.
The wording of a legal act is just as important as its contents as we try to establish a healthy business environment and a competitive national jurisdiction, which, among other things, involves combating offshore tax-evasion schemes.
Any deficiencies in a legal act, such as vague wording, the use of poorly defined terms, inconsistencies, and crudely drafted provisions on its entry into force, invariably weaken its regulatory power and limit its positive impact on social relations in the real world. Transparent and efficient public procedures are extremely important in the application of economic laws. These include antimonopoly, investment, and urban planning laws, as well as laws on communications and power engineering. Legislative omissions or legal inaccuracies that result in the improper administration of a law translate into financial losses for economic actors and the economy as a whole. They also heighten risks for foreign investors, erode credit ratings, and make it more expensive for Russian business to develop.
If we want to be a nation of laws, we must understand that legal language – the language of legal acts – is becoming the language of public administration. And legal techniques are becoming increasingly prominent in the arsenal of administrative methods.
Prominent Russian legal experts drafted the Constitution in 1993. Its text and its structure set a high standard for lawmaking, but they provide no guarantees against legal mistakes or the use of ineffective legal procedures.
Constitutional provisions must not be distorted as they are translated into federal laws, by-laws, or court rulings at all levels of government. This should be a consistent and properly thought through process. That’s why all countries based on the rule of law have a category of lawyers who specialise in drafting laws. The growing role of the lawyers in public life and the greater number of people with a legal background in executive and, more importantly, legislative bodies is a global trend. The law has long been an important lever in economic management and social administration.
Similar trends can be seen in corporate governance. Major international companies develop their own regulatory systems, which rival the legal systems of some countries in their sheer number of rules and the extent to which they impact the routines of employees. The role of legal departments in the private sector is also on the rise. They oversee almost every aspect of a business, from evaluating legal risks to providing legal support for projects in foreign jurisdictions and interacting with government authorities.
However, we must be careful to avoid extremes. The illusion that almost any socioeconomic problem or emergency can be promptly resolved by passing a law is dangerous. Such legalism leads only to casuistry and undermines the legal system. When this happens, people tend to lose respect for law, and the divide between real life and the law steadily widens. Passing a law is just one stage in the legal process. It also must be properly enforced and reviewed. Sometimes laws must be amended or even repealed. The legal process involves making prompt decisions, ensuring coordination among all stakeholders, and understanding the common goal of legal regulation.
The Government and the Constitution
Under Article 110 of the Constitution, the Government exercises executive power in the Russian Federation. The Government directs the activities of the majority of federal executive bodies, which are responsible for developing and implementing government policy in major areas of public life: the economy, the budget, transport, communications, energy, culture, science, education, health care, social security, environmental protection and federal property management.
Thus, the Government and its subordinate federal executive bodies play a unique role in the legal mechanism of the country. According to the constitutional division of powers, the Government:
- cooperates with all government entities – the President, the Federal Assembly chambers, courts and regional government bodies;
- oversees a vast range of socio-economic issues;
- adopts directly applicable legal acts, primarily regulatory resolutions, without which many of the provisions of federal laws would remain de jure or de facto void.
The Government and the federal executive bodies within its jurisdiction (including territorial bodies) are, without exaggeration, the leading public authority in terms of the range of issues it handles and number of legal acts it issues.
Federal executive authority is at the centre of the entire legal process. The Government has the right to initiate legislation, and issues amendments, decisions and official reviews of the drafts discussed by the Federal Assembly. The Government also directly participates in drawing up a considerable part of the President’s executive orders.
As noted above, the resolutions and instructions issued by the Government within the range of powers defined by the Constitution, as well as federal laws and the President’s executive orders traditionally have played an important role in the modern Russian legal system.
Departmental orders are the standard method for implementing federal laws and applying them in specific cases. Tens of thousands of these orders have been issued since the adoption of the Constitution. The Government is also charged with coordinating and overseeing this administrative lawmaking. The Government is responsible for a steady stream of departmental regulations, and it is important that the Government not only ensure that they formally correspond to higher-level regulatory acts, but that they are properly drafted and consistent with other regulations.
The Government’s administrative role in the legal process has a number of different vectors. The vertical ones represent the Government’s interaction with the President as well as federal and regional executive bodies. Today the Government issues numerous acts on the basis of the President’s direct instructions, his major executive orders and provisions of his annual address to the Federal Assembly.
Horizontal administrative contacts ensure the Government’s interaction with state bodies of equal constitutional authority – the Federal Assembly and supreme courts.
Internal ties within the Government are no less important in the system of public administration. The Government’s key function is to coordinate between bodies of departmental jurisdiction and the Government Executive Office, and to make them more effective partners in the legal process. In effect, the Government stands at the intersection of this process as the administrative centre for the majority of projects implemented by federal executive bodies. Visitors of the Government’s official website can peruse meeting agendas and acts to see for themselves the breadth of the issues addressed, both in terms of the regulatory spheres involved and their importance in the life of the country. Many issues are of national significance. In other cases, decisions may concern only a narrow segment of the economy, or specific state corporations and federal properties. But all stages of administration – from the micro to macro level – are concentrated in the agencies of the Government.
Improving the system of executive power
The Russian Government does a lot to make the system of executive power function better. One of the priorities of the administrative reforms carried out in our country since 2004 is transitioning from sector-based to function-based organisation of the federal authorities.
The reforms have focused on delineating executive authorities’ areas of responsibility, and streamlining their numbers and operations. However, not everything has gone smoothly. Public functions were not distributed as intended between ministries, services and agencies in all areas of public administration. A few broken links had to be removed from the chain. Many services tried to get out from under umbrella ministries and become accountable directly to the Government, and some succeeded. In response to the excessive concentration of powers in the ministries, some were broken up and multiple entities created instead. This unleashed competition among administrative bodies, with some devoting most of their efforts to coming out on top.
This raises the question: What is better for the system of executive power – a stable structure, or regular reorganisations? The pace of life is increasing rapidly, and executive authorities must be able to keep up with changes and tackle modern challenges. However, the desire for change can be rooted in purely bureaucratic thinking. It can be a way to fire unwanted people or simply to look busy without accomplishing anything. Change for the sake of change makes no sense. It causes serious harm and stands in the way of the real efforts to build an effective government.
Despite certain setbacks in the administrative reform, the efforts resulted in a proper distribution of functions among government bodies – one of its most important outcomes. Situations in which one executive body issues mandatory requirements on economic agents and also oversees compliance have become exceedingly rare. In the past, this was fertile ground for abuse by officials. Now there are government bodies responsible for regulating the activities of other bodies in detail, officially formulating procedures, and establishing rigid procedural limits and rules on making executive decisions. The fact that their functions are codified in special administrative regulations makes the public administration process more transparent and effective, and the authorities more responsive to people’s needs and requests.
Administrative regulations have been adopted in many areas of public administration in recent years. Uniform guidelines for drafting such regulations and general approaches to their structure and content have been developed.
From here it is just one more step to creating standard administrative procedures, and another step to passing a law on the foundations of executive power, which was discussed back in the 1960s but never passed. Today we have everything we need to accomplish this. All that is required is that we set this as a goal.
The Government, oversight and risk management
The key challenge now is to modify the legal procedures used by federal executive bodies, from preparing initiatives on adopting legal acts to monitoring compliance with them. It is important to combine the centralisation and decentralisation of legal administration, differentiate public lawmaking procedures in terms of the importance, complexity and urgency of the issues they address, and to involve representatives of the public, such as independent experts, in this process. Just like in the private sector, the decision-making process of government bodies should involve an efficient and modern system of legal and managerial risk management.
High-level planning of the legal process is essential. Federal executive bodies should prepare the majority of draft legislation in line with the Government’s legislative plans, and make efficient use of resources, primarily personnel. We must form a cohesive system for forecasting the progress of proposed legislation and monitoring the economic and social impact of federal and regional laws.
Legal norms should not be excessively casuistic. Laws should not be created to regulate specific situations. Lawmaking should be oriented to the future rather than serve a short-term objective.
Special attention should be paid to how government oversight is organised and how stability in legal regulation can be ensured.
The Government’s oversight function is one way in which it maintains rule of law and discipline, and guarantees that society will develop while remaining stable. Much has been done in the past two years to adjust and elaborate on the rules governing oversight procedures, filling in the gaps left from the 1990s. These gaps had a negative effect on the level of protection of subordinate entities and the quality of oversight. However, not all amendments are working as planned. Some problems remain. They reflect both shortcomings in substantive law (which requires greater specification of mandatory requirements on the work of subordinate bodies) and the imperfect procedures governing inspections and enforcement measures in the event of violations. Further improvement of oversight functions will proceed in step with the formation of the regulatory framework of the Customs Union and Common Economic Space.
The problems we see in governance include taking insufficient account of academic law theory when drafting legal acts and attempts to create new mechanisms for legal regulation, irrespective of pre-existing tried and tested universal legal solutions.
Instability in legal regulation, frequent changes in legislation on economic activity, omissions, contradictory legal acts, and poor legal writing all make public administration less efficient.
We need effective and even innovative solutions to these problems. Lawyers employed by government agencies are not the only ones responsible for finding solutions. This is a task for experts in legal theory and practice.
Lawyers must develop high-quality (and preferably model) legal instruments and methods for use in public administration, the corporate sector, the economy and international relations. Unfortunately for the legal community, law is becoming less of an art form and more of a methodology. This methodology should not conflict with the common goals it is meant to support. Obviously, developing effective legal procedures is not an end in itself. They should continue to evolve hand in hand with the development of the state, society, the economy and foreign policy.
Executive authority and civil society
Civil society exerts considerable influence on the state. Some institutions are not satisfied with merely following current legislation and want to influence the government instead. In these conditions, extremely high demands are made of legal regulation, the systemic structure, methods of functioning, professional training and other parameters of executive authority.
To make executive bodies more effective, we must make them more transparent and involve citizens in the process of governance, including through the Open Government. New mechanisms of interaction between executive bodies and civil society institutions are creating the prerequisites for resolving a chronic problem of Russian statehood. As far back as 1862, the outstanding Russian legal scholar Boris Chicherin wrote that “discord between the government and public opinion is always blocking national development.” (Boris Chicherin. A Number of Current Issues. Moscow, 1862. p.7)
The Government has already taken a number of steps to address this problem. In July 2012 the Ministry of Economic Development published a document on its website for public discussion entitled “Concept for a mechanism of publicly presenting proposals of Russian citizens with the support of at least 100,000 via the internet for consideration in the Government of the Russian Federation” (The Russian Public Initiative). The Government endorsed this concept in August 2012.
In the interest of transparency, a website was created to allow everyone to see the proposals, as well as all decisions pertaining to them and the number of votes they obtain.
Presidential Executive Order № 183 of 4 March, 2013 has been signed and entered into force. The order, titled “On the review of public initiatives sent by citizens of the Russian Federation via the website of the Russian Public Initiative,” sets the rules on bringing proposals regarding socio-economic development and improving federal and municipal governance to the attention of the government and society using modern technology.
The main focus now is ensuring that executive and, in some cases, legislative authorities respond adequately to the initiatives of citizens.
It also means a feedback process in which citizens submit their remarks on draft laws proposed by the authorities.
Positive examples already exist. Draft federal laws on education, the foundations of social services in the Russian Federation, and protecting public health from second-hand smoke and the consequences of tobacco use have been subjected to public expert review.
Searching for balance
The Constitution itself is the living fibre of the law. While it may be interpreted in new ways or amended, the core constitutional principles remain unchanged. Certain provisions take on greater importance for society at different moments in history. The proper balance between private and public interests is also subject to interpretation.
The formation and modification of administrative methods should proceed within a constitutional framework – within the constitutional limits on the kinds of legal and institutional instruments that can be used. It is necessary to reflect precisely, with no distortion, the letter and spirit of the Constitution, taking into account the best practices in public administration from around the world. As Sergei Alekseyev rightly wrote, “the existing realities related to the current Russian Constitution should be a lesson and food for thought, with a view to the future.” (Sergei Alekseyev. The Lord’s Most Sacred Thing on Earth. Immanuel Kant and the Problems of Law in the Modern Era. Moscow, 2013. p.236).
This means placing special demands on every participant in the lawmaking process. The Government should carefully choose the means and methods of achieving constitutional ends. There should be no exceptions for anyone, including the members of the Government. It does not matter whether these are regulations, a law, or even an entire code.
Needless to say, not every law can be written in such clear, accessible and beautiful language as the Constitution, but we must strive for this ideal, especially in light of the growing competition between legal systems. Our legal system has come under enormous pressure as a result of the ease with which businesses can move from one continent to another with money, highly skilled personnel and modern technology, or turn to foreign and even international courts. How can we reduce this pressure and make our economy more competitive? The answer is clear – first and foremost, by upgrading the quality of our lawmaking and law enforcement.
Today the Government of the Russian Federation truly stands at the centre of legal processes. Its task is to meticulously plan lawmaking, guided by the Constitution as a road map. There is still immense potential in the Constitution. And this approach will allow Russia to guarantee its development as a rule-of-law state for decades to come.
