Brookings: Experts - William Partlett

Hugo Chavez’s Constitutional Legacy

William Partlett — Thu, 14 Mar 2013 12:57:00 -0400

After his recent death, Hugo Chavez’s legacy is being widely debated. Those on the right see his death as a chance for Venezuelans to emerge from repressive dictatorship – for instance, Republican Senator Marco Rubio has argued that Chavez’s death is an opportunity to “turn the page on one of the darkest periods in its history and embark on a new, albeit difficult, path to restore the rule of law, democratic principles, security and free enterprise system in a nation that deserves so much better than the socialist disaster of the past 14 years.” Those on the left mourn his death. Sean Penn lamented that the “people of the United States lost a friend it never knew it had. And poor people around the world lost a champion."

Less well known, however, is Chavez’s constitutional legacy. Chavez leaves the Venezuelan constitution with a textual basis for populist constitution-making that has been a favored argument of charismatic dictators since the French Revolution.

The Revolutionary Dictatorship of the “People”

This populist constitution-making tradition has its origins in the French Revolution. In 1789, an obscure French clergyman argued that the French people possessed the “constituent power” (pouvoir constituant) to remake the constitutional system. To do this, he argued that an extraordinary body of the people’s elected representatives—a constituent assembly—should establish a new constitutional system of government. This constituent assembly was the ultimate “free radical” of politics: Bearing the limitless power of the “common will of the nation itself,” it—and the leader that controlled it—would be superior to any pre-existing law or institution. In the years that followed, the allure of such concentrated popular power has proven irresistible to aspiring dictators.

In the late 1990s, Hugo Chavez joined this list. Hours after being sworn in as president in 1999, Chavez issued a decree calling for a referendum on a constituent assembly to rewrite the Venezuela constitution. Opponents immediately challenged this decree in court, arguing that existing constitution required the legislature to call such a referendum. The Venezuelan Supreme Court rejected this argument, upholding Chavez’s power to call a referendum because the people’s constituent power is “superior” to the existing constitution. In a subsequent decision, however, the court backed away from this reasoning, holding that if the people approved a constituent assembly, it would be “bound to the spirit of the constitution in force, and therefore is limited by the fundamental principles of the democratic state of law.”

After winning the referendum and successfully gerrymandering a majority in the Constituent Assembly, Chavez ignored this subsequent ruling completely. Calling the vote a “home run with the bases loaded,” Chavez declared the Constituent Assembly to embody the limitless sovereign power of the people. He argued that “neither the president nor Congress nor the Supreme Court, which are the maximum representatives of the constituted powers, can contrive to place themselves above, or put into a subordinate position, a sovereign elected assembly.'' To prove this point, he placed his own presidency at the mercy of the Constituent Assembly, retaking the oath of office after the Constituent Assembly “re-elected” him president. Chavez was now in control of the ultimate “free radical” in Venezuela politics.

The judiciary tried to beat back these claims of ultimate power. Chief justice of the Supreme Court, Cecilia Sosa Gomez, argued that the Constituent Assembly’s responsibility was to draw up a new constitution and not to destroy existing institutions. These arguments, however, were too late. Soon after, the Constituent Assembly considered and approved a “national declaration of emergency” that authorized it to reshape Venezuela’s existing government. The Constituent Assembly fired a number of judges for “corruption” and replaced them with pliant new ones. The assembly next neutered the existing Venezuelan legislature, reducing it to a largely powerless body that rubberstamped the actions of the Constituent Assembly.

Members of the legislature challenged these actions in the Supreme Court. A reshaped Supreme Court accepted Chavez’s argument that the Constituent Assembly stood above above the existing legal order. Chavez’s coup had succeeded. He used his unfettered control over Venezuelan politics to push through a new constitution in December 1999 that strengthened the presidency at the expense of the legislature.

Constitutional Charisma

This constitution is still in force today. Chavez’s revolutionary populist arguments are now part of the text. Article 347 states that “the original constituent power rests with the people of Venezuela” and that this power can be exercised by “calling a National Constituent Assembly for the purpose of transforming the state, creating a new juridical order and drawing up a new constitution.” Article 349 of the constitution explains that “[t]he existing constituted authorities shall not be permitted to obstruct the Constituent Assembly in any way.”

These provisions are an uneasy reminder of the continuing threat of charismatic dictatorship to existing rules and institutions. With the “free radical” of Venezuela politics—the Constituent Assembly—enshrined in the text, Chavez leaves a problematic legacy for those hoping a post-Chavez Venezuela will establish “a government of laws and not men.”

Authors

William Partlett

Putin's Artful Jurisprudence

William Partlett — Wed, 02 Jan 2013 00:00:00 -0500

At 8:00 P.M., Moscow time, on September 21, 1993, Russian president Boris Yeltsin read out an emergency decree on national television. Blaming Russian parliamentary leaders for ignoring the will of the Russian people, Yeltsin abolished the existing constitution and disbanded every legislative assembly in Russia. Russian parliamentary leaders immediately called an emergency session and removed Yeltsin for treason. They named his vice president, Alexander Rutskoi, acting president. The Russian Constitutional Court chairman, Valery Zorkin, then appeared before Parliament and reported that a majority of the court had found Yeltsin’s decree unconstitutional. Russia now had two presidents.

These two presidents eyed each other warily across a tense Moscow for more than a week. They issued competing laws and decrees to strengthen their respective positions. With the backing of the West and the Russian armed forces, Yeltsin quarantined the Russian Parliament in its building. The Parliament surrounded itself with armed supporters and called for a general strike. Fears of civil war spread as both sides sought to gain support and project political legitimacy. Amid this “war of laws,” legality broke down. Chairman Zorkin frantically sought to forge a compromise that would restore the political struggle to a legal plane.

Zorkin’s effort failed. After a series of armed street clashes, Yeltsin ordered the army to storm the Russian Parliament. A shocked Russian populace looked on as tanks took up positions across from Parliament. As tank shells slammed into the building, Rutskoi called Zorkin and asked him to alert the embassies. He went on: “They won’t let us out of here alive. Is the world community actually going to let them shoot the witnesses? There’ll have to be an investigation later, you know. They’re murderers! Do you understand me? You’re a believer, it will be on your head.”

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Authors

William Partlett

Publication: The National Interest

Image Source: © POOL New / Reuters

The Dangers of Popular Constitution-Making

William Partlett — Mon, 03 Dec 2012 12:57:00 -0500

INTRODUCTION

Across the Middle East and North Africa, corrupt dictatorships are currently being swept away with astonishing speed. To fulfill the democratic promise of this wave of authoritarian collapse, these nations must build political systems committed to pluralism, the rule of law, and representative government. The adherence to written constitutional rules that structure and limit the exercise of political power is central to this mission. But how can these countries transform written constitutional rules into a “respect-worthy” form of higher law that can actually limit the power of government? Or, in other words, how can these countries make new democratic constitutions “matter”?

The scholarly answer focuses on the process of constitution-making. It argues that written constitutional rules “matter” when they are drafted and ratified during a period of extraordinary popular mobilization. In this process of “popular constitution-making,” constitutional drafting and ratification necessarily involves irregular mechanisms of extraordinary popular mobilization, such as extra-parliamentary constitutional conventions and referendums. By operating outside the rules and institutions of ordinary politics, the people will be able to act in their sovereign capacity as the “constituent power.” In this constituent position, the people themselves become the author of constitutional rules, maximizing the democratic “legitimacy”of these rules and transforming them into a form of higher law.

Popular constitution-making is grounded on the belief that a successful process of constitution-making must be separated from ordinary politics. This view is so deeply ingrained that a recent article found that “nearly all the normative and positive work on constitutions proceeds from the assumption that constitutional politics are fundamentally different in character from ordinary politics.” In constructing a normative agenda for post-authoritarian constitution-making, scholars and commentators have drawn on this belief to encourage new democracies to deploy extraordinary popular mechanisms such as constitutional conventions and referendums in their constitution-making process.

The experience of constitution-making in post-Communist Europe and Asia, however, challenges this scholarly consensus. First, many Central and Eastern European post-Communist countries have established strong systems of constitutional review without using popular mechanisms to draft and ratify their constitutions. Instead, they used inherited, Communistera institutions and related rules to draft their new constitutions, a process that Andrew Arato calls “parliamentary constitution- making.” In these countries, “constitutional change was so closely associated with political change that it implied a constitutional politics not readily distinguishable from ordinary politics.” The relative success of this form of parliamentary constitution-making in building constitutional orders that limited political power and protected individual rights has led some scholars to formulate a new “legal” model for democratic constitutional adoption.

Second, and more disturbingly, the mechanisms and rhetoric of popular constitution-making have not produced constitutions that limit the concentration of power and protect individual liberty in the post-Communist world. Instead, irregular popular mechanisms like referendums and constitutional conventions have helped charismatic presidents unilaterally impose authoritarian constitutions on society. As Stephen Holmes and Cass Sunstein describe it, “the greater role granted to popular referenda and extra-parliamentary authorities, the less constitutionalism matters as a political force.”

This article will explore why popular constitution-making has led to constitutional dictatorship. Part I will detail the theoretical underpinnings of popular constitution-making. Part II will describe how many Eastern European countries rejected popular constitution-making and instead drafted new constitutions through ordinary political processes and within the preexisting legal system. Part III will demonstrate how popular constitution-making has helped undermine constitutionalism by providing opportunities for charismatic politicians with little desire for constitutionally-limited government to appeal to the people. Claiming to be the agent of the people, these charismatic figures were then able to justify their decisions to sidestep parliamentary opposition and push through “authoritarian constitutions” that concentrated vast power in their own hands. Part IV will conclude by stressing the importance of stable rules and institutions in constraining the constitution-making process.

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Authors

William Partlett

Publication: Social Science Research Network (SSRN)

Image Source: © Amr Dalsh / Reuters

Constitution-Making by "We the Majority" in Egypt

William Partlett — Fri, 30 Nov 2012 11:49:00 -0500

Egypt’s constitution-making process has seemingly attained warp speed. Facing the threat of judicial dissolution, members of the Egyptian Constituent Assembly voted to accept a draft of a new constitution on Thursday. President Mohammed Morsi has called for an “almost immediate referendum” in which a majority is likely to approve the document. Is this extralegal process the final vindication of the people’s will? Or is it a unilateral demonstration of majoritarian will with dangerous consequences for Egyptian constitutionalism?

At the center of Egypt’s growing constitution-making crisis is the body drafting Egypt’s new constitution, the Constituent Assembly. From the very beginning, the makeup of the Constituent Assembly has been contentious. After the first Assembly included 66 (out of 100) Islamists, secular and youth groups had filed legal challenges claiming the Assembly did not sufficiently represent young people, women and minorities. In April, an Egyptian court—with the backing of the military—accepted this argument and suspended the first Constituent Assembly. The second Constituent Assembly has been dogged by similar legal challenges.

Morsi’s Thanksgiving Day Constitutional Declaration sought to finally put an end to the judicial role in constitution-making, squarely holding that the court can no longer dissolve the Constituent Assembly for failing to represent Egypt's diverse social groups. For Morsi and his Islamist power base—who have long characterized these judicial challenges to the Constituent Assembly as political attempts to slow down the revolution by old regime-era judges—the courts’ continued threats to disband the Constituent Assembly violate the principles of popular sovereignty inherent in the revolution. Thus, they argue, his actions are the only way to advance the revolution.

For the courts and the opposition, court supervision is necessary to ensure that the Constituent Assembly produces a draft that reflects the interests of all Egyptians (and not just the Islamist majority in the Assembly). Rallying behind the courts, many people have once again taken to the streets and called on Morsi to respect the role of the courts in ensuring the inclusiveness of the constitution-making process.

French and English Constitutional Legacies

Egypt’s constitutional debate has deep roots in constitutional theory. Mr. Morsi and his supporters are drawing on an intellectual tradition of “popular constitution-making” (tracing back to the French revolution) that sees the majority as unlimited in their ability to draft a new constitution. In this version of constitution-making by the “We the Majority,” the courts have no legitimate role in a revolutionary constitution-making process.

The Egyptian courts and the opposition are drawing on an intellectual tradition dating back to Anglo-American constitutional history. This tradition of “legal constitution-making” states that constitution-making should not be the product of a bare majority. Instead, it should be a more consensual and deliberative process that involves participation through pre-existing institutions and law. As Hanna Arendt described this tradition, constitution-making must be the result not of the monolithic popular will of the majority but instead of “the organized multitude whose power was exerted in accordance with law and limited by them.”

Recent research has shown popular constitution-making to be a favored strategy for those interested in unilateral assertions of power. From Hugo Chavez to Boris Yeltsin, charismatic individuals and political parties have long sought to use their command of electoral majorities to exclude the opposition and stack the constitutional deck in their favor. Unsurprisingly, these unilateral assertions of constitution-making power have ultimately hindered the development of constitutionalism.

Those that have followed the legal and more deliberative path have been far more successful in building stable constitutional democracy. South Africa, Poland and Spain have all recently followed this “legal” model of constitution-making, making wide use of deliberative roundtables, pre-existing law and judicial supervision to ensure an inclusive approach to constitution-making.

Until recently, Egypt had been following that promising legal direction, allowing the courts to ensure an inclusive process of constitution-making. But the Egyptian leadership’s decision to “railroad” the Egyptian Constitution by placing it above judicial review reverses course. This decision therefore threatens not only to make the new Egyptian Constitution a divisive document but also to exclude and undermine a key institutional player in the implementation of this document: the courts.

Authors

William Partlett

Image Source: © Mohamed Abd El Ghany / Reuters

HILJ Symposium: A Pragmatist’s Response to "The Democratic Coup d'Etat"

William Partlett — Thu, 27 Sep 2012 11:14:00 -0400

Editor's Note: This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found on the Opinio Juris website.

The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa – known as the “Arab Spring” – have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus.

Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.

Second, Varol’s article represents an important academic contribution: It is part of a growing body of legal scholarship that addresses the “poorly understood” relationship between constitution-making process and constitutional democracy. Tom Ginsburg, Zachary Elkins, & Justin Blount, Does the Process of Constitution-Making Matter? 5 Annu. Rev. Law Soc. Sci. 201, 210 (2009). Varol’s approach focuses not on the theoretical implications of institutional participation in democratic constitutional change but on the tangible interests and effects of these institutions. This switch from a priori theoretical judgment to context-dependent empirical evaluation helps him jettison unhelpful theoretical typologies (“all military coup d’états are undemocratic because militaries are not elected”) and show how an unlikely institution is actually serving as a critical catalyst of democratic and constitutional change.

And, at first glance, Varol’s story of the democratic coup d’état seems as unlikely as it gets – particularly for those of us whose vision of a military coup is of armed soldiers replacing civilian dictatorship with military dictatorship. But Varol convincingly describes how militaries in certain contexts enjoy high levels of public trust (particularly in comparison with the police) and will seize power only to transfer that power to civilian leadership through free and fair elections. This is not a story of civic-minded altruism but instead one where the military transfers power to elected civilian leaders in return for preserving their privileged position as one of the most trusted institutions in society.

Varol’s story of democracy-promoting militaries fits into a larger story of democratic constitutional change. In the recent tidal “wave” of constitutional foundation (over 180 new constitutions have been adopted in the last 30 years), successful constitutional foundations have frequently involved reformist old regime institutions that helped supervise a negotiated process of democratic change. Ulrich Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (1995). In many of these negotiated revolutions, these undemocratic institutions bargained away power in round table talks that led to stable “legal” procedures for a transition to free and fair elections. This approach has been called the “Spanish model”, a nod to how the Franco regime chose to negotiate its own power away legally during constitution-making in the late 1970s. Luis Lopez Guerra, The Application of the Spanish Model in the Constitutional Transitions in Central and Eastern Europe, 19 Cardozo L. Rev. 1937 (1997-1998). This approach spread to the former communist Eastern Europe during the 1990s, where communist-dominated Parliaments became agents of democratic change in order to preserve their privileged position within society. Varol’s democratic coup d’état represents another chapter in this story.

The success of this kind of negotiated or legal revolution can be traced in part to a neglected risk of constitution-making. Constitution-making is not just a moment of constitutional possibility; it is also a period in which the entire institutional apparatus of the state hangs in the balance. See William Partlett, Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution-Making, Brooklyn J. Int’l Law (Forthcoming 2012); David Landau, Constitution-Making Gone Wrong, Alabama L. Rev. (Forthcoming 2012). In this period, a charismatic individual or political party can reassert dictatorship by turning a popular mandate into a reason for unilaterally reshaping the institutional landscape of the state. Perhaps the two best examples of this kind of plebiscitary constitution-making are Russia and Venezuela, where President Yeltsin and President Chavez were able to seize control of the constitution-making process and unilaterally reshape the institutional apparatus in the process by exploiting temporary popular mandates. Old regime institutions solve this problem by maintaining legality and therefore holding unilateralism in check during this transitional phase.

But what does the involvement of old regime institutions mean for lasting democratic constitutionalism? Although the involvement of these institutions might ensure against the risk of plebiscitary dictatorship, are these “Faustian bargains” – as Varol calls them – ultimately creating weak foundations for long-lasting constitutionalism? Varol chooses to leave this question to future projects.

In addressing this issue, Varol will face another highly theoretical literature which is highly suspicious of negotiated revolutions. In fact, the orthodox approach in this literature maintains that the best way to build a stable foundation for constitutionalism is to draft a constitution in a process that maximizes the democratic or popular legitimacy of a new constitution (one of the most influential examples of this orthodox literature is Bruce Ackerman’s Future of Liberal Revolution (1992)). By giving undemocratic institutions a role in constitution-making, the approach goes, these countries are sacrificing key constitutional legitimacy. In essence, this orthodoxy asks: How can a new constitution survive as the new democratic charter when it is also riddled with provisions that are meant to ensure the survival of old regime players?

Varol’s examples of democratic coup d’états hint at one possible response to this question: We are too focused on the significance of the founding moment as a source of legitimacy for constitutional law. Take Varol’s Portuguese example. Although the Portuguese military successfully entrenched itself in the constitution after overthrowing the dictatorship, it created a sunset clause allowing a two-thirds majority of the Parliament to remove this constitutional entrenchment six years later. And this is exactly what happened: The democratically elected parliament later dislodged this military entrenchment. A similar process of gradual democratization happened in Turkey: Over time, elected officials have weakened military control over one of the chief institutions created by the Turkish military to protect its interests: the National Security Council.

Portugal and Turkey are not alone. Two of the countries most successful in building constitutional democracy during the 1990s – South Africa and Poland – did not draft new comprehensive democratic constitutions at their founding. Andrew Arato, Civil Society, Constitution, and Legitimacy 142 (2000). Instead, they both adopted compromise constitutional texts, which served as a bridge between the authoritarian past and the democratic future. These interim constitutions helped preserve legality and institutions, avoiding any dangers of unilateralism that could emerge during periods of constitution-making period. Comprehensive democratic constitutions were only passed later when the vicissitudes of political and economic change had settled down.

In this strategy of staged constitutionalism, the concern about the presence of an undemocratic “taint” during the period of foundation is less pressing: As long as key provisions of the constitution are temporary, the democratic process can allow for a more comprehensive democratic constitution later on. This suggests that a constitutional order does not have to draw its full legitimacy from the moment of founding.

Although a full explanation of staged constitutionalism lies outside the scope of this short response, Varol’s insightful article encourages us to revisit our assumptions about the importance of democratic constitutional foundation at the moment of founding. Although this empirical story of staged constitutionalism conveys a less heroic vision of democratic constitutional foundation, it might present a more realistic one. And this more empirical view might also be one that helps us better understand the relationship between constitution-making process and constitutional democracy in the real world.

Authors

William Partlett

Publication: Opinion Juris

Image Source: © Mohamed Abd El Ghany / Reuters

Mr. Putin’s "Rule-by-Law State"

William Partlett — Tue, 19 Jun 2012 14:30:00 -0400

In the last couple of weeks, the Russian authorities have increased their efforts to stem the tide of the Russian opposition movement. On June 8, President Vladimir Putin signed a controversial law introducing cripplingly high fines for protest violations. On June 9, six people were detained for allegedly inciting violence in a May 6 protest. On the same day, eight people were detained in front of the Moscow police headquarters on Ulitsa Petrovka for protesting the earlier arrests. Finally, on June 11 – the day before a major opposition protest - men with Kalashnikov rifles raided the homes of prominent leaders of the opposition.

Is Russian history repeating itself? Are we seeing the beginnings of a Stalinist style repression orchestrated by a former KGB colonel? Many Russian bloggers have recently hinted at this: A photograph of a Soviet coin issued in 1937 - the year that marked the peak of the Stalinist purges – has recently been making the rounds with a caption reading: “In circulation once again.” This comparison was carried further when Twitter hashtag #privet37god (hello, 1937) topped the trending charts. Although it might be tempting to take these Stalinist comparisons seriously, they obscure a far different – and more complicated - reality.

From Party Discipline to Legal Discipline

In the Soviet Union, law was a bewildering web of conflicting laws, decrees and regulations. In the absence of clear law, the Communist Party implemented their policy through an appointment system in which party members were parachuted into key state positions to implement party policy (“nomenklatura” system). To function, this system of governmental power relied on personal loyalty to party policies rather than the top-down implementation of legal rules. This lack of clear rules left the Party plenty of room to manipulate the law to advance its interests.

As belief in communist ideology waned and fear of harsh party discipline subsided, however, this system grew increasingly less effective at implementing high-level party policy. Mikhail Gorbachev was the first to try to reform this inefficient system of personalized governance, ending the party’s monopoly on power and attempting to implement policy through presidential lawmaking. This project was ultimately a failure: Without party discipline, law tore the Soviet Union apart as presidents of the Soviet republics, like Boris Yeltsin, themselves passed laws to weaken the Soviet center and eventually declare their independence.

After independence, Russian President Boris Yeltsin continued to use law to battle an openly hostile Russian Parliament, issuing dozens of executive decrees that conflicted with parliamentary laws. This “war of laws” worsened the conflicting system of laws inherited from the Soviet period and paralyzed the Russian government. As parts of the Russian state fell under the control of powerful business or regional players, it was unclear who was actually “running Russia.” In 1997, President Yeltsin declared the need to restore “legal order” in the Russian state and appointed a newcomer from St. Petersburg to carry out this mission: Vladimir Putin.

Strategic Presidential Lawmaking

Mr. Putin would take up this mission in earnest as president. Within months of taking over the presidency in January 2000, Mr. Putin worked to rebuild state power by constructing a “rule-by-law state” where law formulated by the presidential administration would be implemented in the country by courts and prosecutors. This Putinist legal system relied heavily on the “strategic-operational dichotomy” that Mr. Putin had outlined in his plagiarized thesis. The president formulated strategic policy through lawmaking, and judges and prosecutors monitored the implementation of these laws though the judicial process. To implement this legal power vertically, Mr. Putin focused his attention on coordinating legislative policy with parliament by simplifying legal codes and signaling to judges and prosecutors that he would expand their power in return for loyalty.

Since 2000, Mr. Putin has made clear steps toward realizing this system. Parliament has worked closely with Mr. Putin in updating legal codes and passing strategic legislation that re-centralizes power in Kremlin. Newly empowered prosecutors and judges have enthusiastically implemented these “strategic” presidential legal initiatives. The success of this strategic “rule-by-law” state has not, however, led to increased democratic pluralism. On the contrary, it has allowed Mr. Putin to reassert presidential control over two forces that challenged the Kremlin for power during the 1990s: the regional governors and powerful business oligarchs.

This “rule-by-law” state, however, constrains Mr. Putin as well. Unlike his Soviet predecessors, Mr. Putin can no longer indefinitely detain and execute “enemies of the state”. Although the Putin regime can manipulate legal process to its ends, it cannot completely flaunt international standards. The prosecution of Mikhail Khordorkovsky is illustrative. An exhaustive review of the case by the European Court of Human Rights found evidence of abuse of process, but ultimately did not find sufficient evidence to conclude that the prosecution was politically motivated. Even the recent law increasing fines for the protest violations shows these constraints: This law was passed to expand the range of legal tools available to the Putin regime in its attempt to “strategically manage” the opposition movement.

Mr. Putin’s rule-by-law state also provides opportunities - albeit limited - for members of the opposition to fight back against the Putin regime. For instance, opposition leader and lawyer Alexei Navalny has made a name for himself by buying minority shares in sensitive state-owned companies and then scouring the books for evidence of corruption. He remains a savvy user of the law, most recently suing the Russian Investigative Committee for more information on an ongoing investigation. Thus, although there is little question that Mr. Putin’s rule-by-law system is a far cry from a Western-style rule of law system, a simple conclusion is inescapable: Law matters more in Russia today than it ever has before.

Authors

William Partlett

Image Source: © Maxim Shemetov / Reuters

Can Russia Keep Faking Democracy?

William Partlett — Tue, 22 May 2012 12:34:00 -0400

Can Russia Keep Faking Democracy?

Over the last six months, the Russian protest movement has adopted a dizzying number of different identities. As peaceful mass protests have morphed into a mix of violent street clashes and Twitter-sourced, hipster sit-ins, it is clear that the opposition comprises an incredibly diverse range of people, ideas and agendas. In all of this diversity, however, the Russian opposition movement is unified by one factor: A fundamental rejection of Vladimir Putin’s system of “managed” or, more accurately, “fake” democracy.

The Ideological and Historical Roots of Fake Democracy

Russia’s “fake democracy” is an exemplar of a post-Cold War global type of political governance that Steven Levitsky and Lucan Way call “competitive authoritarianism.” The roots of this system lie in the Cold War competition between the Leninist one-party state and free market liberal democracy.

In the aftermath of World War I, the Leninist one-party state emerged as an ideological challenge to liberal democracy. As well as promising a Marxist utopia, the Leninist model represented a new political strategy for modernizing and delivering economic and social goods to the “people”. In the 1920 and 1930s, this Leninist model – where a mobilized party elite directs both politics and economics – seemed to be advancing rapidly: Many saw it as a more “modern” way of governing in a world where the old, laissez-faire mechanisms of free market economics and limited government no longer worked.

With the triumph of the Soviet Union and the United States in World War II, the two leading examples of these models competed for dominance. After years of economic distortion, political repression and stagnating standards of living, however, the Leninist one-party state began to lose the war of ideas. This ideological erosion drew from diverse sources - from images of sparkling American kitchens to underground human rights movements. The rot eventually spread to Soviet Union, where the collapse of the Communist Party caused the Soviet Union to fracture into its constituent republics.

With the ideological collapse of the Leninist one-party state, liberal democracy was now widely perceived to be the best system for political and economic modernization. Francis Fukuyama proclaimed that the world had reached the “End of History” as an almost universal wish to imitate the way of life associated with the liberal capitalist democracies spread around the world.

Seeing the “writing on the Berlin wall,” political elites realized that they needed to appear “liberal” to hold on to power. But these elites refused to accept the concrete effects of liberal, pluralistic politics, including the real possibility of losing power. As a result, they developed intricate systems of “faking” liberal democratic politics in order to legitimize their rule with the appearance of liberal democracy while maintaining their monopoly on power. Levitsky and Way describe this new system as one where “formal democratic institutions are widely viewed as the primary means of gaining power, but in which fraud, civil liberties violations, and abuse of state and media resources so skew the playing field that the regime cannot be labeled democratic.”

Can Putin Keep Faking It?

Russia followed this path. After the fall of the Soviet Union, President Yeltsin’s administration feared that the checks and balances of liberal democracy would endanger its plans for radical, top-down economic reform. Thus, his administration created the institutions of liberal democracy – from constitutional foundation to elections – but ensured that they could be manipulated by the ruling elite in the presidential administration. Electoral fraud and media manipulation were at the very center of this strategy. Vladimir Putin ruthlessly perfected this system of “fake” democracy. For much of Mr. Putin’s time in power, this system of fake democracy appeared to be a stable form of political governance.

The Russian protest movement, however, suggests that this system - like its Leninist predecessor - might be headed for the dustbin of history. The massive December protests in Moscow were aimed at the most important part of Russian fake democracy: electoral fraud. Furthermore, the “hipsters” featured in the recent protests have demonstrated the power of internet-based social media in skirting the information monopoly that is so critical to faking democracy. And many of the protestors express a common desire to live in a “normal” country – a place without the distortions, cronyism and corruption that come with fake democracy.

Mr. Putin and his newly formed government now face a fundamentally different political landscape. They must take steps toward “real” democracy or risk undermining the regime. Although stagnation or retrenchment might be tempting given the instability in the world, time is running out to “normalize” politics in Russia. Key players in Russian politics – including Putin’s old associate Alexei Kudrin – have grasped this fact. But has Mr. Putin?

Authors

William Partlett

Image Source: © RIA Novosti / Reuters

Will Vladimir Putin Learn from Russia’s Revolutionary History?

William Partlett — Mon, 14 May 2012 13:39:00 -0400

On Friday, President Vladimir Putin’s former finance minister, Alexei Kudrin, issued a stark warning to his former boss: If the regime refuses to pursue "further” political reforms and continues its recent policy of mass detention, it will radicalize the opposition and jeopardize any real possibility of meaningful dialogue. Mr. Kudrin – an associate with such close ties to Mr. Putin that the two have been referred to as “Pudrin” – commands Mr. Putin’s respect. But will Mr. Putin listen?

Prospects for a Russian political center

In the months leading up to Putin’s inauguration, both the opposition and the government seemed to be pursuing a path toward negotiated political change. The massive street protests against the falsification of the Parliamentary elections were peaceful and festive. Soon after, this momentum was transferred into real grassroots political organization. Focusing on local change through the ballot box, members of the opposition picked up seats in the Moscow district council and mayoral positions in both medium-sized Russian towns.

The Putin regime sanctioned these large protests while directing the police to avoid violence or large-scale crackdowns. The regime also seemed to be responsive to the demands of the protestors. Although refusing to rerun the elections, outgoing President Dmitry Medvedev pushed through a bill liberalizing party registration and another restoring gubernatorial elections. Something truly “revolutionary” seemed to be developing in Russian politics: a political center.

In the last couple of weeks, however, this political center seems to be shrinking. The regime has abandoned pledges of continued political reform through constitutional change and instead has increasingly focused on intensifying state involvement in economic growth. Elements of the opposition, too, seem to have changed tactics. On May 6, the street protests grew more violent. Following the example of self-professed Stalinist and professional revolutionary (Sergei Udaltsov), elements of the opposition consciously sought to provoke the police. The police obliged by arresting on sight anyone wearing the white ribbons of the opposition. Meanwhile, confrontational rhetoric has escalated on both sides. Opposition bloggers have recently proclaimed that “rebellion is inevitable” and “the battle for Russia has begun. This is war!” In response, Mr. Putin’s spokesman encouraged the police to smear the “livers of protesters across the asphalt.”

In the aftermath of this radicalization, things have reached a tense stalemate. More experienced opposition leaders have called for an end to escalating street violence and provocations. For instance, Grigory Yavlinsky has criticized the opposition for this more violent, confrontational approach. Instead, he argued, the opposition has to embark on “serious politics, win elections, and take power. Will it be a long time? Yes, six years is very long, but we'll cannot do this any quicker.” Yavlinksy has been joined by other moderates, including Vladimir Milov, who argue that the best way to keep pressure on the regime is to abandon revolutionary rhetoric and assemble the broadest coalition possible to force political reform.

Learning from history

It is less clear whether voices within the Putin regime are counseling moderation. One thing, however, is clear: If the regime is serious about learning from Russian history, they should be. Since taking power in 2000, Mr. Putin has obsessively cited Russian history in support of his belief that revolutionary change is counterproductive and that the best path for Russia is evolutionary reform under a strong and law-based government. In 2001, Putin joked that Russia “overfulfilled its plan for revolutions” in the twentieth century.

But another lesson from Russian history is equally important: Evolutionary change is only possible when the government is willing to allow room for the formation of a political center. The Tsarist government brought on the 1917 Russian Revolution by refusing to compromise with moderates and destroying Russia’s political center. Men like Kudrin and Yavlinsky are currently seeking to begin the painstaking process of constructing a broad political center. Will Mr. Putin and his regime learn from history and help this effort? Or will they stifle its development and push Russia to once again “overfulfill” its quota for revolutions?

Authors

William Partlett

Image Source: Denis Sinyakov / Reuters

The Constitutionality of Vladimir Putin's Third Term as President of Russia

William Partlett — Fri, 09 Mar 2012 13:57:00 -0500

Almost as soon as the election results declaring Vladimir Putin's election were certified, Russia's nascent opposition immediately challenged the results as illegitimate. The League of Voters, for instance, argued that the massive irregularities, use of administrative resources, and abuse of law discredited "the institutions of the Russian presidency, the Russian electoral system, and the entire Russian state." The Putin regime has responded in part by stressing the importance of legality and constitutionality. First, it has reiterated its now-familiar refrain: If you have problems with the elections you should pursue these claims through the constitutionally-guaranteed judicial process. More importantly, on the day after the disputed presidential election, outgoing President Medvedev introduced a bill outlining the formation of a Constitutional Assembly that could redraft the Russian constitution. This bill - which Mr. Medvedev had promised to deliver after a February 20 meeting with the new, non-systemic opposition - will determine the rules for forming a Constitutional Assembly.

But is "constitutional reform" even worth discussing in a state like Russia? Yes. One of the most persistent myths about Russia is that the constitution is a meaningless document that has done little to constrain Mr. Putin's relentless centralization of power. On the contrary, the Russian Constitution has done what it was intended to do: enable presidential power. In fact, contrary to popular belief, the rights outlined in the Russian constitution are not guaranteed by political pluralism or a strong judiciary (as they are in the West). Instead, these rights are "guaranteed" by the vast powers of the Russian president. To exercise these powers, the president operates above the system of executive, legislative, and judicial power. Mr. Putin's centralization of political power therefore did not violate the Russian constitution; on the contrary, it finally allowed him to be the authoritarian guarantor of Russian democracy envisioned by the constitution!

The "Spirit" of the Russian Constitution

Russia's authoritarian constitution presents a problem for democratic reformers. How can they argue that Mr. Putin's rule is unconstitutional when he can simply point to the text of Russia's authoritarian constitution? Mr. Putin's third term is a prime example. Despite some people’s attempt to argue otherwise, Mr. Putin's return to the presidency is clearly constitutional. Indeed, Article 81, Section 3 of the Russian constitution clearly states that: "One person may not hold the position of Russian president for more than two terms in a row." By any canon of textual interpretation, this provision limits an individual from three or more consecutive terms and nothing more.

Left without any textual support for their arguments, some opposition members have begun to argue that Mr. Putin's third term (and entire regime) violates the "spirit" of the law. Although this constitutional strategy began long before the December parliamentary elections, it has intensified since Mr. Putin's fateful September 2011 announcement that he would be returning to power. Making this argument are a mix of opposition politicians - both old and new - and commentators who claim that the Russian constitution must be broadly interpreted to reflect the broad democratic values laid out in its opening chapters. Vladimir Ovsiannikov of the ill-named Liberal Democratic Party recently stated that Putin's third term "violates the spirit of the constitution" because it undoubtedly conflicts with its "democratic principles". Viktor Shudegov of the A Just Russia Party also commented that it would be necessary to rewrite the document to ensure that no individual can repeat Mr. Putin's actions. Vladimir Pastukhov - a former advisor to the Russian Constitutional Court - argued late last year that the "spirit" of the Russian constitution should prevail over the letter of the law and therefore Mr. Putin's third term is illegitimate (if not formally unconstitutional). Finally, there is evidence that the Russian people are uncomfortable with Mr. Putin's third term. A recent Levada Center poll suggests that 57 percent of Russians think that one person should be limited to two presidential terms in total.

The Zorkin Doctrine

The Putin regime's chief legal pamphleteer and chairman of the Russian Constitutional Court, Valery Zorkin, has led a withering attack on this concept of the "spirit" of the constitution. In a series of articles and speeches spanning the last decade, Mr. Zorkin argues that judges and politicians who stray from the text of the constitution and appeal to "higher law" in understanding the document are endangering the construction of a true rule of law in Russia. For Mr. Zorkin - Russia's answer to Justice Scalia - situating the "spirit" of the constitution in "transcendental" democratic values is dangerous: "You sit behind your desk, surrounded by legal literature and hoping to create the ideal constitution. But beyond those windows and walls where you have your dreams, passions rage and real life seethes. . . . If you do not consider the laws of this struggle, the historical tradition, and the content of this social progress, at best your legal creation, no matter how perfect it may be, will be a barren utopia. At worst, it is the road to a hell of real chaos, boasting an amoral dictatorship that neglects any legal norms."

Mr. Zorkin also argues that in the rare times that a judge is required to depart from the text of the constitution and look to outside values, this extra-textual quest should be drawn as much from Russia's unique history and heritage as from universal democratic values. This uniquely Russian context - what he calls Russia's "fundamental reality" - necessarily includes "authoritarian elements" that can ensure Russia's stable "transition" from "a lawless past to a new democracy." Mr. Zorkin's view is broadly influential amongst many members of the Constitutional Court. In fact, recent court opinions have upheld pro-government legislation in part based on the fact that Russia was at a stage in its democratic development where a strong president is required.

Redrafting Russia's Authoritarian Constitution

Mr. Zorkin’s argument reveals a significant problem for those hoping for a more democratic interpretation of the Russian constitution: their arguments are unhinged from the text and are, therefore, political arguments unenforceable in court. A constitutional assembly, however, offers the democratic opposition an opportunity to redraft the text of Russia's authoritarian constitution. Although this process of textual redrafting is likely to be slow and full of unsatisfying compromises, it has the potential to turn questions of presidential administrative domination into judicial questions and enable the gradual, nonviolent political change demanded by the opposition.

Constitutional reform is not unprecedented in Russian history. In the late Tsarist period and the early 1990s, constitutional debate was at the forefront of Russian politics. These debates were short circuited by unstable political environments and violent coup d'etats. Russia's current economic and political situation is now, by contrast, far more stable; perhaps now is the time for a serious constitutional debate about the future of Russia's political system.

Authors

William Partlett

Vladimir Putin and the Role of Law in Russia

William Partlett — Tue, 28 Feb 2012 13:08:00 -0500

Vladimir Putin has been busy -- he recently published his seventh pre-election article in two months. These lengthy articles cover a dizzying range of issues, from ethnic integration to foreign policy. As Mr. Putin’s re-election (or “reappointment” as some have derisively commented) looms, these articles provide a tantalizing window into what to expect from Mr. Putin’s impending third term as president. Some are predictable: Mr. Putin will continue to assert Russia’s interests in the face a dangerous global order and enact policies that will ensure Russia’s stable democratic development. One theme, however, stands out as potentially rather different: the surprising emphasis that Mr. Putin – himself a trained lawyer – places on the role of law in political and economic change.

Reliance on the law has typically been short-lived amongst Russian leaders. From Lenin to Yeltsin, Russian leaders have strategically used legal rhetoric but have ultimately jettisoned legal limitations in the relentless pursuit of their political and economic goals. Mr. Putin’s emphasis on what he has previously called the “dictatorship of law” hints at a different approach, explicitly drawing on a deep tradition of conservative Russian legal thought that begins with the nineteenth century philosopher Boris Chicherin and that persists today in the current chairman of the Russian Constitutional Court, Valery Zorkin. This legalistic form of political thought helped underpin the abolition of serfdom and the constitutional movement of the late Tsarist period. The promise of these reforms was ultimately unfulfilled. Will Mr. Putin finally fulfill this promise?

A Dictatorship of the Law

In his opening article on January 17, Mr. Putin proclaims that the Russian state will not allow itself to be swept up in growing forces of instability, but instead will seek to control these forces by actively “setting the rules of the game.” He continues: Russia will “muscle up” by “being open to change” through state sanctioned procedures and rules.

In the domestic arena, he writes, a focus on legality will help Russia avoid its “recurring problem” of straining for “sudden change” and promote “well thought-out, considered reforms.” In his article entitled “Democracy and the Quality of Government,” he emphasizes this point with a quote from a late Tsarist constitutional thinker, Pavel Novgordtsev, who warned that “the proclamation of liberty and universal suffrage” do not “magically” lead to democracy but instead toward “oligarchy or anarchy.” Mr. Putin therefore demands that the opposition employ “democratic” – and here he means state-sanctioned – means for change. To encourage this kind of lawful dispute resolution, he proposes expanding the rights of public organizations to sue government officials and publicizing court proceedings. He also argues that the Russian state should act in a law-based manner. The Russian government almost collapsed in the 1990s, he argues, by yielding to “the temptation of illusions” and a lawless “fortune favors the brave” attitude. But since his rise to power in 2000, adherence to clear rules of the game has helped secure Russia’s stable development in a “democratic, constitutional manner.” Adherence to the law, he argues, must continue or Russia’s democratic development will be put at risk.

In the international realm, Mr. Putin argues that the “basic principles of international law” are under attack. In his most recent article entitled “Russia and the Changing World,” Mr. Putin argues that certain countries – insinuating the United States and its NATO allies – are violating “international law and state sovereignty” under the banner of universal human rights. This disrespect for international law is inevitably “more costly than anticipated.” Mr. Putin’s cautionary tale is Libya, where he argues that NATO’s export of “gunship democracy” in the name of humanitarian principles has fostered an even worse outcome: lawlessness and anarchy. This “Libyan scenario,” he argues, must not be allowed to repeat itself or it will lead to a moral and legal void in the international system where every country must seek nuclear weapons to ensure its security. For Mr. Putin, international conflict must be resolved through the United Nations and be grounded in its key founding principle: state sovereignty.

From Putinism to Legalism?

What evidence exists that Mr. Putin’s recent bout of legalism is more than just a convenient strategy to limit both U.S. power and the burgeoning opposition movement? Mr. Putin has paid far more attention to legal reform than his predecessor Boris Yeltsin. Upon taking over the presidency in 2000, Mr. Putin’s first three major policy speeches addressed the need for legal reform. He has followed through on this emphasis, making considerable progress toward updating the contradictory Russian legal system, including pushing through a new criminal code. Furthermore, he has been surprisingly open to implementing human rights norms from the European Convention on Human Rights in the Russian courts. In fact, under Putin, decisions by the European Court of Human Rights – where cases against the Russian state make up more than a quarter of the docket – have been implemented successfully (with some notable exceptions). Perhaps the best example is Russia’s permanent ban on the death penalty to bring its law in line with European standards.

These limited steps, however, do not suggest that Mr. Putin is open to a legal system that might check government power. Instead, Mr. Putin’s regime has followed the Russian tradition of using law to punish its opponents. Two prominent Constitutional Court judges recently lost their seats for accusing the Putin regime of infringing on the independence of the judiciary. Finally, human rights violations by the Russian state are still rampant: Over a quarter of all cases in the European Court of Human Rights are filed against the Russian state.

As he eyes another six years in power, only Mr. Putin knows whether he will expand on these limited steps toward a law-based state. Strengthening legality by seriously expanding access to courts and encouraging real judicial independence could help Mr. Putin adapt to the turbulent and unpredictable years to come. Furthermore, it could also help him achieve his stated goals of decreasing Russian corruption and boosting foreign investment. In deciding whether his appeals to legalism are cynical or real, Mr. Putin should heed the advice of Russia’s leading legal philosopher: “The moderate direction can only find its way when it is linked with the government. If the government does not support it, it must give way to another approach."

Authors

William Partlett

Valery Zorkin's State and Revolution

William Partlett — Mon, 13 Feb 2012 12:27:00 -0500

Last Friday, President Medvedev appointed Valery Zorkin to an additional six-year term as chairman of the Constitutional Court. This move comes in the wake of two high profile articles in which Mr. Zorkin repeatedly stressed the fundamental importance of preserving the legal means for securing Russia's stable development toward democracy. Mr. Zorkin's official confirmation as Russia's top lawyer therefore is likely more than a routine decision: It strongly suggests that the Putin regime endorses key elements of Mr. Zorkin's legal strategy for handling Russia's domestic crisis.

The Zorkin Doctrine

Mr. Zorkin was not always a legal pamphleteer for the Russian government. In 1993, he found himself on the wrong side of the barricades, losing his chairmanship of the Constitutional Court for leading a special session that declared President Yeltsin's coup d'etat unconstitutional. In the years following this humiliation, however, Mr. Zorkin has had a miraculous revival of fortune. Drawing deep legitimacy from his principled stance against President Yeltsin's violent coup d'etat, he was reinstated to the Constitutional Court in 1993. In 2000, he received a formal commendation from President Putin for his "multi-year service to the Russian state," and in 2003, he was elected Chairman of the Court once again. As Putin's top lawyer, he has maintained a lower political profile than he did in the turbulent early 1990s.

That changed in the wake of the massive Bolotnaya Square protests on December 10, 2011. On December 12, Constitution Day, Mr. Zorkin penned an article with a stark warning: The protest movement threatened to throw Russia back into "national catastrophe." For Zorkin, the protestors are on the threshold of repeating President Yeltsin's mistake from 1993 -- believing that the end (democracy) justifies the means (illegality). Yeltsin's decision to break with legality for democracy was a “deep tragedy for the country: bloody street clashes, the military destruction of Parliament . . and . . the deepest cut of all was to the respect for law, without which democracy is simply not possible.” To avoid this outcome, he called on the opposition to abandon its disregard for legality and embark upon a legal reform strategy marked by "heroic moderation."

In his second article a month later, Mr. Zorkin significantly expanded this argument. He condemned a “creeping move” towards an international system where some governments – and here we can clearly infer the United States – believe that they are justified in undermining other countries' sovereignty and system of legality in the name of democratic revolution. In support, Zorkin cited the example of Libya. The destruction of Libya's "extremely defective" system of legality by the international community has led to an even worse outcome, a “chaotic intertribal warfare” and “the total destruction of the basis for the legal regulation of life.” Applying these lessons to Russia's domestic situation, Mr. Zorkin argued that the opposition has no extralegal "right to revolution." He argued instead that the opposition should pursue its goals through the "mechanisms and procedures for the democratic resolution of conflicts."

Zorkin's theory of state and revolution places the state and legal norms at the center of democratic change. Drawing on anti-Bolshevik legal philosophers from the late Tsarist period, his theory implies that the state - no matter how defective - must always serve as the anchor of order and security in any process of democratic change. If the state is destroyed, no democratic progress can be made. Thus, any successful democratic reform movement must find ways to work through the state rather than against it. The model he proposes for a state-mediated "democratic revolution" is the Spanish "Moncloa Pact", where all members of society sat down together to negotiate a lawful legal and constitutional transition toward democratic governance.

There are strong hints that this "Zorkin Doctrine" is shared at the highest levels of Russian government. Two days after Mr. Zorkin's December 12 article, Mr. Putin repeatedly stressed the importance of the opposition remaining "within the framework of the law" in his live question and answer session. He later emphasized the importance of "procedures for resolving disputes" and the need to petition Russia's "energetic and objective" judges.

Furthermore, in recent remarks justifying Russia's support of Syria, Vladimir Putin used Zorkin-esque language to criticize a “cult of violence” which has “become a trend in international affairs.” Mr. Putin continued his remarks by pointing to the Libya example. “For some reason people are not talking about the terrible crimes being committed in Sirt and other cities who supported Khaddafi today. No one is talking about these crimes because they are the clear consequence of external intervention. Syria is the same."

Finally, Mr. Putin has placed judicial reform at the very center of his goal of improving the quality of Russian institutions. In the conclusion to his December 6 article, he specifically proposed expanding the rights of citizens to challenge administrative or bureaucratic violations in the Russian court system.

A Convenient Strategy or a Shared Commitment to Legality?

The Zorkin Doctrine might at first seem to simply provide a convenient strategy for a regime that wants to contain a surging protest movement and stress stable democratic development. But the Zorkin Doctrine is far more than that, requiring the state to abandon Bolshevik-style, extralegal means in the defense of its own goals. Mr. Zorkin stresses this point by quoting his legal hero Boris Chicherin, who wrote that "a government is moral only when it is governed by law." If both society and the state must respect the rules of the game, we are thus left with an important question: Will the Putin regime allow its grip on power to be legally unravelled? Perhaps only one thing is certain in response: If the regime does not follow the law itself, it cannot expect the opposition to do the same.

Authors

William Partlett

A Russian Constitutional Revolution

William Partlett — Wed, 01 Feb 2012 14:09:00 -0500

This Saturday, the Russian opposition goes back to work: More than 20,000 people have signed up on Facebook to brave subzero temperatures for "A Peaceful March for Honest Elections." This new protest comes at a critical time for Russia's nascent political opposition: There there have been no headline grabbing protests in January and the opposition has been fighting amongst themselves. Meanwhile, the Putin regime has been busy. Vladimir Putin has personally penned three long articles promising gradual, stable political reform while hinting that the opposition's goals will lead to the lawlessness and chaos of the 1990s.

How should the opposition respond on Saturday? Even with a massive turnout, the movement's current focus on "clean" parliamentary elections and the defeat of Mr. Putin in the March presidential elections is insufficient. In fact, even if March's presidential election is completely free and fair, Mr. Putin will win a new six-year presidential term—as much because there is no serious opposition candidate as to Mr. Putin's personal popularity. Furthermore, the disputed parliamentary elections concern the lower house of the Russian Parliament (the Duma). The upper house of the Russian Parliament (the Federation Council) is not directly elected and remains under the control of the presidential administration. Thus, any opposition gains in clean elections can be blocked by the upper house.

To keep pressure on the Putin regime and achieve true change, the opposition must adopt a more fundamental objective: Long-lasting reform of Russia's authoritarian constitutional system. But why should the opposition care about the Constitution?

Russia's Authoritarian Constitutional System

To understand the importance of the Russian Constitution in the current political struggle, it is necessary to understand the creation of Russia's constitutional system almost twenty years ago. A critical constitutional debate was raging during the vicious struggle for power between President Boris Yeltsin and the Russian Parliament in 1993. On one side were the Constitutional Court and the Russian Parliament's Constitutional Commission, who argued that Russia needed a constitutional system of checks and balances modeled on western constitutionalism. This connection with the Western constitutionalism was so strong that the head of the Parliamentary Constitutional Commission—Oleg Rumiantsev—was dubbed the Russian James Madison.

On the other side of the debate was Boris Yeltsin's presidential administration. At the Constitutional Convention convened by President Yeltsin in summer 1993, leading Yeltsin officials—including Mr. Putin's boss in St. Petersburg from the early 1990s, Anatoly Sobchak—strenuously argued that the new Russian constitutional system should not be draw from Western examples. At the center of this uniquely Russian vision was the presidency. The Russian president, they argued, should not face any structural checks: Instead, the Russian president should stand above the system of legislative, executive, and judicial power like a monarch. One Yeltsin advisor analogized this constitutional structure to a tree: The president was the trunk and the legislative, executive, and judicial powers were the branches.

As the only official elected by the whole people, the president was to exercise power by controlling all three "branches" of government. The president was granted a near monopoly over the executive branch of government, able to disband the lower house of Parliament if the body did not confirm his choice for prime minister. Furthermore, the president was given significant potential power over the upper house of the Russian Parliament. Yeltsin's Draft specified that half of this body was to be "formed"—not elected—from members of the executive branch in Russia's eighty-three administrative regions. This gave the president the constitutional power to indirectly control the selection of half of the upper house through presidential control of regional executives (governors). Finally, the president had the power to appoint all judges with the approval of this docile upper house of Parliament.

After decisively settling this debate by shelling the Russian Parliament and disbanding the Constitutional Court, the Yeltsin team ratified this authoritarian constitutional system in a December 1993 referendum. During the 1990s, however, it was easy to miss this authoritarian constitutional structure: President Yeltsin was unable to realize the vast constitutional powers of the presidency for a number of reasons, including assertive regional executives, his frailties as a leader, and low oil prices.

Vladimir Putin did not have the same problems. Upon taking power on January 1, 2000, Mr. Putin—a lawyer by training—actively moved to realize the constitutional powers of the Russian president. In his first month in power alone, Mr. Putin gave three speeches on the importance of building a "dictatorship of the law" that realized the full potential of Russia's constitutional structure. Buoyed by rising oil prices and more disciplined leadership, Putin methodically realized the near limitless constitutional powers of the president's top down vertical of power. Most importantly, he exercised his constitutional powers to appoint regional executives (governors), which ensured that his regional representatives would appoint compliant executive representatives to the upper house of Parliament.

A Constitutional Revolution

As three Russian scholars point out in a recent article, the extensive electoral fraud in December's parliamentary elections are the natural result of this system. For an opposition movement that has repeatedly stressed that it wants peaceful change, constitutional revolution therefore should be at the very center of its goals.

At the heart of this constitutional revolution should be the fundamental reshaping of the relationship between the president and both houses of Parliament. First, the opposition should strengthen the hand of the lower house of the Parliament in forming the executive branch and confirming the prime minister; the lower house should be able to block the president's candidate without fear of being disbanded. Second, the opposition should push for specific wording in the Constitution ensuring that the upper house of Parliament is a directly elected body and delete any wording requiring half of the members of this body to be representatives of the regional executives. This newly strengthened upper house of Parliament should play a much more powerful role in filtering presidential choices for judicial appointments.

The Russian opposition seem to be making encouraging moves in this direction. Lilia Shevtsova recently pointed out that key members of the opposition have recently moved from slogans of "Down with Putin" to "Down with the Whole Political System!" Although likely part of a long game, calls for constitutional reform might have unexpected allies with the Putin regime. In recent years, President Dmitry Medvedev—who is likely to be President Putin's Prime Minister—has discussed strengthening the role of the Parliament in Russia's constitutional system.

A constitutional revolution in Russia also provides a constructive policy for an international community that hopes to promote democratic pluralism in Russia while avoiding lawless instability in a nuclear superpower. It therefore effectively answers the Putin regime's arguments that sudden political change is too dangerous or destabilizing. In fact, it follows the most successful model of democratic transition in the last half century: the negotiated constitutional revolutions pursued by Spain, Portugal, Poland, Taiwan, and South Korea.

Russia has a long tradition of experimenting with lawless revolution. Maybe it’s time for a less risky experiment: constitutional revolution.

Authors

William Partlett

State Capitalism and Russia's Energy Strategy in the Far East

William Partlett — Wed, 04 Jan 2012 17:02:00 -0500

While Moscow was witnessing its largest protests in decades last month, a life and death struggle was taking place in the frigid waters of the Russian Far East. On December 18, as the Gazprom-owned Kolskaya rig was being towed across the Sea of Okhotsk to Sakhalin Island, a massive storm swept in. Facing six-meter swells and gale force winds, the small jack-up rig stood little chance. In less than 30 minutes, the rig had sunk, forcing all 67 rig workers into frigid waters 200 kilometers from land. After days of frantic searching, only 14 crew members were rescued. With 53 rig workers dead, the Russian offshore oil and gas industry now faces the largest disaster in its history.

The Kolskaya tragedy is the most recent chapter in Russia’s emerging energy strategy in its far eastern regions. At the center of this tale is the island of Sakhalin. Located in the north Pacific, Sakhalin first came to the energy world’s attention during the Soviet period when a joint Soviet-Japanese exploration project located vast hydrocarbon reserves off its shores. During the Soviet era, these reserves were never tapped: Sakhalin's combination of seismic activity, harsh winters, and ice-bound water put these resources beyond the capabilities of Soviet engineers.

With the fall of communism and the opening of the economy to foreign investment, however, the Russian government brought in Shell and ExxonMobil to deploy their exceptional technological expertise off the harsh coast of Sakhalin. At first, these deals were very successful: Shell and ExxonMobil brought much-needed technology, money, and expertise to the Russian Far East, a region long-neglected by Moscow.

The New Rules of the Game

The honeymoon period for foreign oil companies, however, did not last. With Vladimir Putin’s rise to power and increasing oil prices, the new regime saw energy resources as a key political asset important for both modernizing the country and consolidating state power domestically while also influencing and building relationships with neighboring countries.

Domestic and foreign companies now faced new rules of the game. Perhaps the clearest new rule for foreign energy companies was that the balance of power was shifting: large foreign oil majors like ExxonMobil would be encouraged to participate in the Russian energy sector but they would have to defer to Russian state-owned energy companies.

The Russian Far East was no exception to these new rules. Domestically, state control of hydrocarbon rents could help modernize the region. Internationally, Sakhalin's offshore reserves promised to be a critical tool for the Russian state in its relations with China, Japan, and Korea.

The two foreign oil majors operating projects in Sakhalin, ExxonMobil and Shell, found themselves under significant pressure. In 2005, the Russian government cancelled a 1993 agreement giving ExxonMobil and Chevron the rights to develop a key block off the Sakhalin Island and gave the field to Gazprom and Rosneft instead. In 2006, Russia used its environmental watchdog to force Shell to cede control of its Sakhalin block to Gazprom. Furthermore, since 2007, the Russian government has forced ExxonMobil to back out of a lucrative agreement to sell natural gas to China, telling ExxonMobil to sell all of its gas to Russia’s state-owned gas export monopoly: Gazprom. Although this dispute is still ongoing, one thing is clear: The only question remaining is whether ExxonMobil will get commercially attractive terms for selling its gas to Gazprom.

But At What Cost?

The Kolskaya tragedy illustrates the growing costs of this state-centered energy strategy in the harsh conditions of the Arctic. Indeed, while ExxonMobil’s project in the region is subjected to withering scrutiny and employs state-of-the-art technology to mitigate risks, state-owned companies like Gazprom act with near impunity. Media reports already suggest that Gazprom ignored warnings that the 26-year old Kolskaya rig was "unfit for the harsh conditions and [would be] too far from rescue crews to be reached quickly in case of an accident." Furthermore, other accounts suggest that Gazprom disregarded a safety report from the Russian environmental watchdog and was illegally using the Kolskaya rig. Finally, environmentalists warn that the Kolskaya disaster should serve as a warning: in the event of a major oil spill, Gazprom does not have the technological expertise to respond; endangering the region's delicate ecosystem.

The Kolskaya tragedy strongly suggests that while Russia’s new statist rules of the game might help attain its political goals in East Asia, they alone cannot adequately mitigate the growing risk of the harsh conditions in the north Pacific. Russia therefore faces a choice: As resource exploration and extraction grows more technically difficult and riskier in the unforgiving conditions of the north Pacific and Arctic, will it continue these rules of the game? And, if so, at what cost?

Authors

William Partlett

Putin’s Answer to the Protests

William Partlett — Fri, 16 Dec 2011 16:10:00 -0500

As tens of thousands of people gathered in Moscow on December 10 to protest recent parliamentary elections, it was clear that Vladimir Putin and his regime faced the biggest political crisis in Russia since the fall of communism. After five days of near silence, Mr. Putin gave his response. Following a format that he himself invented, he sat down in front of a live television audience to answer scores of carefully screened questions.

Four and a half hours later, the carefully selected questions and emphatic answers revealed Mr. Putin’s emerging strategy. Although he acknowledged the people’s mood and offered some reforms, he dismissed any charges of election fraud and crudely insulted the political opposition. The elections, he argued, were an accurate reflection of the political forces in Russia: the party of power – United Russia – had even lost ground. In the end, Mr. Putin was sending a message to (what he hopes is) a silent majority of Russians: any problems are “normal” and will be solved during Russia’s continued stable development.

Message Received

From the very beginning of this staged question and answer session, it was clear that this one would be different. Instead of opening the session with a long laundry list of accomplishments as he had in the past, Mr. Putin addressed a series of questions surrounding the recent protests in the center of Moscow. Abandoning his flimsy claim that the protests were orchestrated by the United States, Mr. Putin acknowledged that the people were dissatisfied with the political system and that he was happy to see the protestors legally voicing their opinions.

Once he had acknowledged the people’s dissatisfaction, he turned his attention to the disputed election. Drawing an implicit distinction between the “political opposition” and the “people”, Mr. Putin dismissed the evidence showing widespread election fraud. These allegations, he argued, were simply the “natural” reaction of a political opposition that was dissatisfied with the elections and was trying to “destabilize society.” And the opposition? He could not avoid a crude attack on their white ribbons, confessing that his first thought was that they were part of an anti-AIDS campaign because they looked like “tied up condoms.”

To ensure that similar charges were not leveled against the upcoming March presidential elections, Mr. Putin emphatically stated that web cameras should be placed in every polling station across Russia’s vast landmass. These cameras would work day and night and the opposition could see for themselves that the election was free and fair. He also stated that it would make sense to liberalize the regime of registering political parties.

Trust me, We Have Everything Under Control

Once he had dismissed any charges of fraud, Mr. Putin acknowledged that the people did have a legitimate grievance: the political system was increasingly plagued by a growing gulf between the people and the regional elite. After recounting a story of a local official too scared to face his own constituents, he put forward his most concrete reform proposal of the session: a return to a system of elections for regional representatives. Subject to appropriate presidential filtering, these elections would ensure that mid-level officials would no longer be able to stay in power by ignoring the demands of their constituents.

Other than this proposal to return to a system of “controlled elections”, however, Mr. Putin – much as he did almost a month earlier at the Valdai Conference – failed to go into any further details about concrete solutions to Russia’s existing political or economic challenges (including the dangers of an oil price below $80 a barrel). He demonstrated vague support for devolving power to the local level (remembering a meeting he had with Aleksandr Solzhentisyn on this topic) but gave few specifics on how his local power would be increased in his top-down system of power. Other than that, his proposals were bereft of detail.

This was perhaps best demonstrated when Putin faced a softball question about his “mission” if elected president in March 2012. After spending most of his answer cataloguing his previous accomplishments, he spent a brief time rotely declaring Russia’s need to “diversify the economy”, “strengthen its political system”, and “develop the social sphere.” Behind these slogans, his message was clear: trust me, we will continue a stable and orderly process of development.

We Don’t Need Great Revolutions!

Mr. Putin’s question and answer session therefore was not directed at the internet-savvy, westernized elite who are demanding tangible change and furiously organizing another protest for December 24th in Moscow. Instead, Mr. Putin’s vague promises of “stable development” were directed at what Putin hopes is his own silent majority: the pensioners, factory workers, and office workers who have benefited from ten years of “stable development.” The regime is hoping that this majority will agree with a Russian factory worker and Duma member who addressed Mr. Putin early in the session. Instead of asking a concrete question, he simply addressed all Russians and said “In every family and house there are problems. . . . We Russians have always endured. We don’t need great revolutions.”

Authors

William Partlett