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Presidentialism, Russian-style

July 10, 2013 - Fabian Burkhardt - Bez kategorii

Red_copy_of_the_Russian_constitution.jpg

Red_copy_of_the_Russian_constitution.jpg

Sergey Alekseyev, one of the founding fathers of the Second Russian Republic, passed away in May almost unnoticed by the public. The constitutional draft co-written with Sergey Shakhrai served as the basis during constitution-making in 1993, but was turned upside-down during the constitutional process and in the following years under Yeltsin, Putin and Medvedev. Fabian Burkhardt, an MA in Russian Studies from the School of Slavonic and East European Studies, discusses how this came about and the forgotten death of Sergey Alekseyev.

Imagine Alexander Hamilton, Thomas Jefferson or James Madison had died without anybody noticing? This is basically what has happened in Russia recently when Sergei Alexeyev, one of the authors of the Russian constitution, passed away in St. Petersburg on May 12th. The absence of any sort of celebration of this personality is even more remarkable as in 2013 it has been 20 years since the Russian constitutional crisis and the subsequent popular referendum on the new constitution on December 12th 1993. On this occasion quite a few media outlets ran special projects dedicated to Russian constitutional history, the main events, actors and issues at stake in 1993. Yet only Rossiyskaya Gazeta, the official government newspaper, published an obituary of Alexeyev, written by Sergei Shakhrai, the head of the Audit Chamber, and close ally of Alexeyev at the time.

Alexeyev and Shakhrai penned the so-called “presidential project” which served as the working basis of the Constitutional Convention convened by Yeltsin on June 5th 1993, as constitution-making in parliament reached a deadlock. Shakhrai praises Alexeyev as a “neutral professional” with the intellectual capacities of a Nobel laureate and aptly summarises Alexeyev’s vision of the constitution in five pillars: 1. human rights; 2. a strong and stable power (vlast’); 3. economic freedom based on law; 4. a judiciary; 5. a real federation. In terms of the separation of powers, Alexeyev held that “the presidential principle” was to be highlighted as the main one, but with a strong parliament and a strong, independent government (pravitel’stvo)”.

The presidential principle

Simultaneously with its adoption, criticism was levelled at the constitution for its horizontal imbalance between the president, the government and parliament. Stephen Holmes was among the first to dub the system super-presidentialist. Oleg Rumyantsev, the former Secretary of the Constitutional Commission of the Russian Supreme Soviet, in 1994 called it a form of government “far from democracy”, as there were no real levers of control over the president. Therefore, he wrote, a sort of “autocratic government” took hold in Russia.

One of the best treatments in western scholarship of the constitutional status of the president was delivered by William Partlett in his essay Separation of Powers without Checks and Balances: the Failure of Semi-Presidentialism and the Making of the Russian Constitutional System, 1991-1993, in which Partlett clearly shows that with the president situated above the three separated powers of parliament (legislative), the government (executive), and the constitutional and supreme courts (judicial power), there can be no checks and balances in the Western sense.

With Alexeyev being a key figure in the Yeltsin team, it seems reasonable to put a large share of the blame for the strong presidency on him (as Partlett does, for example). Yet a closer look both at the source documents of the Constitutional Convention 1993 as well as later interviews with Alexeyev, show that his initial idea of the presidency did not actually materialise.

In an interview with the weekly Ogoniok, Alexeyev disclosed that in mid-1993, he was sidelined and eventually removed from the constitution-making process. He was accused of having equipped the presidency with only “sleeping”, ceremonial powers, thus making Boris Yeltsin a male Elisabeth II (actually both Alexeyev and Shakhrai admitted, that in private they had called the president in their constitutional draft “the English Queen”).

The scholar Robert Sharlet famously called the Russian Basic Law an “European Airbus” assembled from American and French constitutional traditions. However, lesser known is what Alexeyev confided to Ivan Marino in the course of an interview project with the Russian founding fathers: rather than looking for inspiration in pure presidentialism of the United States or in semi-presidentialism of the French fifth republic, Alexeyev turned to Germany’s chancellor democracy with a weak presidency, and to Italy where the president, according to the constitution, acts as an arbiter between the powers.

Sergei Shakhrai also rejects the idea that the constitution has a French inspiration, saying: “This is absolutely not true. Alexeyev and I wrote a great deal of the constitution on a blank piece of paper, out of our head. We even wanted to depart from the classical separation of powers in judicial, executive and legislative powers, we wanted to name the General Procuracy, the Audit Chamber, the Central Election Commission, the Ombudsman for Human Rights and the Central Bank as separate powers, too. And, what is especially important, the president.

The main idea was that the president was only to jump in when a crisis looms. When something happened, he is supposed to be an arbiter, the guarantor of the constitution. But in reality this model does not fully work.” Today, in Shakhrai’s opinion, merely 60 per cent of the constitution’s potential is being realised, although the president-parliamentary aspect of the basic law is being realised by more than 100 per cent. In other words, the presidency is much stronger than initially intended by Alexeyev, and with a great deal more competences than in the adopted version of 1993.

There is no doubt that Alexeyev was in favour of a strong executive power, but what he had in mind was a strong government, not a strong presidency: “We say ‘presidential republic’, ‘presidential power’, yet the icing on the cake is the independent government, it should be independent and responsible, deciding issues on its own.” In his view, the president was to provide a “state-legal umbrella” for all the other institutions and shouldn't be allowed to meddle with the executive branch. In a joint op-ed written for Izvestiya with Anatoli Sobchak, mayor of St. Petersburg and another founding father, entitled “The constitution and the fate of Russia”, Alexeyev admonished that in 1992 “under conditions of underdeveloped democratic forms, a direct merger of the institution of the presidency and the executive takes place, and this, on its part, subsequently leads to an authoritarian, dictatorial regime.”

Yet as mentioned earlier, Alexeyev was sidelined during the summer of 1993 with the conflict between the Supreme Soviet Republic and president Yeltsin escalating. Yeltsin not only suspended the Constitutional Court, whose head Valery Zorkin had been trying to mediate between the legislative and the executive, but, quite symbolically, bombed parliament in October to terminate the constitutional crisis.

The development of the current presidential power

Yeltin’s “original sin” in the constitution-making process, however, was far less visible for the public. On November 8th 1993, Sergei Filatov, head of the presidential administration, presented the final constitutional draft approved by the Constitutional Convention to Yeltsin, who added 16 hand-written amendments and ordered the draft to be printed and published in preparation for the public referendum on December 12th 1993. Two of these amendments significantly enhanced the president’s powers towards the executive and the legislative. Yeltsin granted the president the right to preside during government sessions and gave presidential decrees normative force, thus basically giving them equal status to regular laws. Alexeyev both in public statements during the Constitutional Convention and later in interviews strongly opposed inroads of the presidency into the executive.

Yeltsin thus kicked off a trend that the Higher School of Economic’s Mikhail Krasnov, one of Russia’s finest constitutional scholars, has been monitoring for years. Krasnov found out that from 1994 to 2011 presidential power had been increasing significantly, mainly thanks to sub-constitutional federal laws and federal constitutional laws. In this period, Krasnov counted 473 new presidential competences, of which 24 per cent under Yeltsin, 43 per cent under Putin and even 46 per cent under Dmitry Medvedev were unconstitutional.

A 2012 report by Minchenko Consulting stated that Vladimir Putin had finally realised his long-standing dream to introduce an American-style presidency. The presidentialisation in Russian politics is obvious, yet with one caveat. As William Partlett has shown, there are no Western-style checks and balances in the 1993 Russian constitution. With the confidential institutional change documented by Krasnov, this imbalance has been greatly increasing. As the constitution is rigid (it was only amended once in 2008), this gradual change often goes unnoticed.

Recently, when in May 2013 Vladimir Putin presided over a government session in order to check upon the implementation of his presidential decrees (the session was a memorable as Vladislav Surkov, the deputy prime minister, stepped down as a consequence), he displayed dissatisfaction and announced that it was “personal, public and political responsibility” of all the ministers before the president. This is remarkable insofar as according to the 1997 law “On the government”, only the five “power ministries” (silovye ministerstva) directly answered to the president.

This rare public demonstration of presidentialisation is quite different to what Sergey Alexeyev had in mind when he spoke about an independent and responsible government. When asked by Ivan Marino why his ideas did not materialise, Alexeyev replied: “These are our traditions. The first person has to decide all the main issues. This is how it has to be in Russia.”

Fabian Burkhardt holds an MA in Russian Studies from the School of Slavonic and East European Studies, University College London, and is currently a research fellow involved in the project “Institutions and institutional change in post-communism” at Ludwig-Maximilian-University Munich.

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