On Friday, the US House of Representatives passed the Russia and Moldova Jackson-Vanik Repeal Act of 2012 [PDF], which will have several effects on US trade relationships with Russia. The legislation also includes the controversial Sergei Magnitsky Rule of Law Accountability Act, which is aimed at addressing previously discussed questions that have been raised in Washington about Russia's track record on human rights and the rule of law specifically in relation to the death of Russian lawyer Sergei Magnitsky.
These recent legislative developments underscore that, while domestic reform in Russia has gained some headway in safeguarding human rights, questions remain as to whether Russia's law-in-the-books can effectively translate to full and meaningful enforcement. Much evidence points to the contrary, with one principal concern being the increasing purview of Russia's president over domestic and foreign political affairs. In the article that follows, we will focus on Russia's executive branch, and, in particular, the office of the presidency within the framework of the Russian constitutional system.
After the collapse of communism in Eastern Europe and the Soviet Union, constitutional reformers replaced communist constitutional regimes with newer models that were thought to be, at least facially, compatible with norms of democracy and the rule of law. There was no doubt that constitutional outcomes were shaped by established Western democracies. While the initial constitutional development in the post-communist countries of Eastern Europe aimed to bring these countries at par with European Union (EU) standards not just economically, but perhaps in terms of a full political union, the Russian Federation took a different path. The most prominent aspect that sets Russia's post-Soviet constitutional model apart from its counterparts in Europe and the US is a stronger institutional design and focus on the roles, structures and powers of the executive branch. In particular, the office of the president.
It ought to be noted that the new constitution of Russia sought to introduce general principles associated with democracy as the "West" would understand them to be including the introduction of universal principles of human rights, the establishment of independent courts and a constitutional court aimed at ensuring democratic values. The constitutions of France, the US and other democracies emphasize the private economic interests of civil society such as fair taxes, tariffs, customs duties, and property rights as driving forces of constitutional formation.
Conversely, Russian constitutionalism was, and continues to be, marked by a strong, centralized state with a tripartite system where power is apparently tilted toward the presidency. Indeed, Russia's new constitution still maintains many Soviet-era public law concepts, including what may strike many as lingering Soviet conceptions of what ought to be "federal" and "state." These notions of public law can be in sharp contrast with contemporary American constitutional thought, where concepts of "state" or "federal government" take on minimalist conceptions, as opposed to strong or maximalist conceptions of state power. The emphasis in the post-Soviet constitution is on a more centralized state, and, at its core, a strong presidency is normatively considered to be the main vehicle of a centralized conception of national development.
In other cases, the Russian Constitution does not clearly define the boundaries between the executive, the legislative and the judiciary. The office of the Russian presidency is a powerful example of this blending of executive, legislative and judicial powers, although in the Russian Constitution the main task of the president is to be:
[T]he guarantor of the Constitution of the Russian Federation and of human and civil rights and freedoms .... [and] shall adopt measures to protect the sovereignty of the Russian Federation, its independence and State integrity, and shall ensure the coordinated functioning and interaction of State government bodies.In this sense, the president also wields legislative-judicial powers through a constitutionally reposed power to issue "edicts and regulations." According to Article 90 of the constitution, "the President of the Russian Federation shall issue edicts and regulations" and that these "shall be binding throughout the territory of the Russian Federation." The president, moreover, is the guardian of the democratic order, who, in addition to executive and law making powers, has the power to exercise a peculiar form of "judicial review." Specifically, the president has the right:
[T]o suspend acts by organs of executive power of the subjects of the Russian Federation if such acts contravene the Constitution of the Russian Federation and federal laws, the international obligations of the Russian Federation, or violate human rights and civil rights and liberties, pending the resolution of the issue in [the] appropriate court.The constitutional opportunity to suspend laws by the president seems to give the office a semblance of judicial review in interpreting whether laws "contravene" the "Constitution" and "federal laws," or whether such acts "violate human rights" prior to "resolution of the issue" in court. Thus, it may be said that, in addition to executive and rule-making powers, Russia's president can wield interim judicial authority if not full-blown constitutional review powers. It is only in Article 90.3 of the constitution that presidential decrees are declared to be subject to judicial review: "[D]ecrees and orders of the President of the Russian Federation shall not run counter to the Constitution of the Russian Federation and the federal laws." These decrees, however, do not pass through automatic judicial review, but are only subject to conditional review, when the Duma or another organ of government chooses to bring a case before the Constitutional Court of Russia.
More alarmingly, however, are the recent changes to the terms of presidency. In 2008, the Russian constitution was amended to extend the presidential term from four years to six years. Russia's upper house of parliament, the Federation Council, supported this constitutional amendment, which no doubt strengthened the presidency, for the ostensible purpose of adding to the stability of government and political development. However, this change gave the current Russian president, Vladimir Putin, a term until 2018. Moreover, according to the new amendments Putin can be re-elected to a second six-year term which would be his fourth that would effectively maintain him as president of Russia until 2024.
More troubling is that another constitutional amendment may be introduced to modify Article 81, Paragraph 3, which currently states that "[t]he same person may not hold the office of president of the Russian Federation for more than two consecutive terms." Another amendment could potentially erase even this check against prolonged executive authority. While no member of the Duma, to date, has seriously considered tabling such a bill, the possibility is not too far-fetched given Putin's increasingly entrenched presidency and the increasing social acceptability of the executive's growing powers. One should also consider that the very proponents of the foregoing amendments which effectively extended, entrenched and consolidated presidential power in Russia belong to Putin's administration. Moreover, these amendments were made with very little meaningful opposition.
It, thus, remains to be seen whether the Russian electorate and Russian society at large can be an effective check on "democratic" Russian politics today.
Kambiz Behi is a consultant in foreign affairs at EnterInvest in Minsk, Belarus and Russia. He holds a Ph.D in Social Anthropology and Masters in Regional Studies from Harvard University, and a Master of Laws (LL.M.) from the University of Pennsylvania Law School.
Edsel Tupaz is owner of Tupaz and Associates and a professor of international and comparative law, based in Manila, Philippines. He is a graduate of Harvard Law School and Ateneo Law School.
Suggested citation: Kambiz Behi and Edsel Tupaz, Russian Presidency: The Erosion of Democracy, JURIST - Sidebar, Nov. 19, 2012, http://jurist.org/sidebar/2012/11/behi-tupaz-russia-constitution.php
This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com