Russia has stopped dead still in anticipation of what this March will bring. The outburst of political activity that started last December continues to grow in strength. For me, this comes as a big surprise. For almost a decade, Russians had stood by idly as the democratic achievements of the 1990s were taken from them, one after the other.

First, independent media was wiped out like the Colorado beetle. Then, small and medium political parties alike were labeled  ‘dwarves’ and summarily kicked out of the political arena. The critical point came after the tragedy in Beslan, when Russian President Vladimir Putin came forward with a statement on the necessity of consolidating executive power in Russia. Shortly thereafter, the corresponding bill was presented to the parliament, promptly approved, and signed into law. When I found out that the most efficient way to fight terrorism was abolishing gubernatorial elections in Russia and replacing these with presidential appointments, I lost my sense of humor. Though it probably did scare the terrorists.

The political upheaval that came in the aftermath of the December 2011 parliamentary elections has brought many of the most pressing issues affecting the future of the Russia to the surface, including the questions surrounding the constitution. I share the opinion of political scientist Liliya Shevtzova, lawyer Mikhail Krasnov, and Igor Klyamkin, a sociologist, whose joint article in Novaya Gazeta clearly states the point: “A sovereign leader has no place in the constitution.”  However, by design, the current Russian Constitution disagrees.

The year of 1993 was dedicated to the drafting and refining of a constitution. This constitution was meant to be more than beautiful words; it was meant to be the fundamental law by which Russia would actually be governed. Russia had already seen a constitution that was full of beautiful words, Stalin’s notorious Constitution of 1936. In it, one can find a chapter entitled “The Fundamental Rights and Obligations of Citizens” that is nothing short of amazing considering what was really going on in the Soviet Union at that time.

For example, Article 125 of the 1936 Constitution envisaged that “in accordance with the interests of the working people and in order to strengthen the socialist system” Soviet citizens   were guaranteed “ a) the freedom of speech; b) the freedom of the press; c) freedom of assembly and meetings; d) freedom of public processions and demonstrations.” The Constitution stated that these rights of the Soviet citizens were ensured by “providing the working people and their organizations access to printing facilities, paper supplies, public buildings, streets, communications, and other material conditions necessary for the exercise of the aforementioned rights.”

In addition, according to Article 127, the Soviet people enjoyed personal immunity, and could not be arrested without a court order or a warrant. Article 128 stated that the inviolability of residence and the privacy of correspondence were protected by law.  On paper, everything appeared to be the dream of a democratic state, a perfect constitution de jure. Unfortunately, we all know how little this constitution had to do with Soviet reality de facto, and  what the status of the individual in the Soviet Union of the 1930s really was.

In 1993, each of the prominent Russian lawyers involved in the process of drafting the constitution presented their ideas for the best possible form of government for Russia. The idea of a parliamentary republic (the most sustainable and politically stable system) gained almost no support in the very beginning and became impossible for Russia after the political crisis of September/October 1993. So the choice had to be made between the presidential and the semi-presidential systems.

Two constitutional drafts  (one developed by Sergey Shakhray's working group and the other by August Mishin and Yury Skouratov under the auspices of the Reform Foundation) were based on the American experience: a presidential system where the President is both the Head of State and the Chief Executive. According to Boris Yeltsin's former assistants, the President liked the draft by Mishin and Skouratov. However, very soon, the advocates of the semi-presidential system changed Yeltsin’s mind by making the point that in the presidential system, the president cannot dissolve the lower chamber of the Parliament. As a result, the decision was made not to deprive the Russian President of this powerful bargaining chip, the ability to dissolve the Parliament, and the choice was made in favor of the semi-presidential system, with the Constitution of the Fifth Republic in France as the model.

This French Constitution became famous as the classical Constitution ad hoc: it was designed for charismatic leader Charles de Gaulle. Many specialists call it the Caesarian Constitution, due to the fact it provides French presidents with powers as numerous and broad as those of the Caesars of ancient Rome. Essentially, this Constitution guarantees all the necessary prerequisites for the introduction of a sovereign-rule regime. Surprisingly, none of the French presidents have ever taken advantage of the full scope of powers provided for by the Constitution of the Fifth Republic. Moreover, in 2000, on the initiative of then-President Jacques Chirac, the French voted to reduce the 7-year presidential term from the original constitution to a 5-year term.  We the people of Russia fail to understand how a president can make the decision to reduce his own term. To us, Russians, it seems shameful.

In order to avoid being ashamed, the Russian political elite took a different approach, and the French model started to change under the forces of the Russian milieu. French presidents had much to learn from the Russians. Here is the infamous Part 3 of Article 80 of the Russian Constitution of 1993, which states that “According to the Constitution of the Russian Federation and the federal laws, the President of the Russian Federation shall determine the guidelines of the internal and foreign policies of the state.” Given that the Russian President isn’t formally a part of any of the branches of power, essentially existing above the system, all of this seems strange. According to this provision, the head of state, who is not a part of the system of checks and balances, has the power to determine the guidelines of the internal and foreign policies of the state, in complete contradiction to the principle of the separation of powers itself (as established in Article 10 of the Russian Constitution). This isn’t just strange, it’s downright scary.

Cases where the Russian president can dissolve the lower chamber of the Russian Parliament provide another good example of the sovereign powers of the President. Part 4 of Article 111 of the Constitution states that if the State Duma rejects the candidates for the position of the Chairman of the Government of the Russian Federation three times, the President of the Russian Federation shall nominate the Chairman of the Government of the Russian Federation, dissolve the State Duma, and call for new elections. Part 3 of Article 117 envisages another situation in which the President can dissolve the lower chamber of the Russian federal legislature. If the State Duma votes no confidence in the Government of the Russian Federation, the President of the Russian Federation shall be free to dissolve the Government or to reject the decision of the State Duma. If, within three months, the State Duma again expresses that it has no confidence in the present Government of the Russian Federation, the President of the Russian Federation may either dissolve the Government or the State Duma.

The wording of these constitutional provisions leaves no room for doubt: for the Russian President, the situation is non-negotiable in both cases, and the decision to dissolve the State Duma can be made at his sole discretion. It is significant how the wording of this clause differs from the wording of the analogous section of the French constitution. According to Article 12 of the Constitution of the Fifth Republic, “after consultations with the Prime Minister and the chairpersons of both chambers of the French Parliament, the President may announce the dissolution of the National Assembly” (the lower chamber of the French Parliament).

Russian expertise, both in terms of constitutional wording and in the realm of the practical implementation of the semi-presidential system, is relevant in other countries as well. A number of very familiar provisions can be found in the former Constitution of Kyrgyzstan, which was declared void in 2010. Part 7 of Article 71 of that constitution stated that if, in the span of three months, the Djogorku Kenesh (the unicameral parliament of Kyrgyzstan) twice expressed no confidence in the Government of the Kyrgyz Republic, the President would either announce the dissolution of the Government or dissolve Djogorku Kenesh.

Part 3 of Article 42 of the Constitution of Kyrgyzstan actually nullified the principle of the separation of powers by copying the wording of Part 3 of Article 80 of the Russian Constitution, repeating that the President shall determine the guidelines for State internal and foreign policies. Kyrgyz lawmakers even went one step further, and their Constitution included a provision allowing the President to give the Government instructions without consulting with representatives from other government branches: Part 1 of Article 71 stated that the President could take part in the Government sessions in order to set the tasks and objectives toward realizing the main guidelines for internal and foreign policies. Needless to say, Article 7 of the Constitution of Kyrgyzstan envisaged the separation of powers as one of the fundamental principles of their government.

The 17 years that the semi-presidential system existed in Kyrgyzstan demonstrated the trend for a progressive increase in the power of the President. The critical point in this development came when Kurmanbek Bakiyev became the President of Kyrgyzstan. Under his rule, the semi-presidential system translated into tyranny, and in the beginning of April of 2010, the Kyrgyz people decided they would no longer take it. After riots broke out throughout the country, Bakiyev was overthrown and forced into exile. The political elite of Kyrgyzstan has definitely learned from this, and the new constitution provides for a parliamentary republic.

2010 riots in Kyrgyzstan

I doubt that Russia will reach the point of changing the constitutional system. First of all, because the current state of the political parties in Russian wouldn’t allow for a parliamentary republic.  Secondly, the past two decades of Russian history show that the modification of  institutional design is not enough to ensure practical change. In conclusion, I would like to quote Mikhail Krasnov, who asked, “Why does the constitutional system established in 1993 create such a serious imbalance in the system of checks and balances? Why does it include provisions that directly threaten which the very spirit of the rule of law, even when rule of law seemed to be the ultimate goal of every author of every draft of the constitution? The only explanation is the human factor.” Indeed, it seems that so far, the human factor in Russia has failed to acknowledge that implementing the semi-presidential system necessitates following the safety precautions.