CDDRL WORKING PAPERS. Constitutional Roulette: The Russian Parliament s Battles with the President Over Appointing a Prime Minister. Eugene D.

Transcription

1 CDDRL WORKING PAPERS Constitutional Roulette: The Russian Parliament s Battles with the President Over Appointing a Prime Minister Eugene D. Mazo Center on Democracy, Development, and The Rule of Law Stanford Institute on International Studies Number 35 February 3, 2005 This working paper was produced as part of CDDRL s ongoing programming on economic and political development in transitional states. Additional working papers appear on CDDRL s website:

2 Center on Democracy, Development, and The Rule of Law Stanford Institute of International Studies Stanford University Encina Hall Stanford, CA Phone: Fax: About the Center on Democracy, Development and the Rule of Law (CDDRL) CDDRL was founded by a generous grant from the Bill and Flora Hewlett Foundation in October in 2002 as part of the Stanford Institute for International Studies at Stanford University. The Center supports analytic studies, policy relevant research, training and outreach activities to assist developing countries in the design and implementation of policies to foster growth, democracy, and the rule of law. About the Author Eugene D. Mazo is a post-doctoral fellow and research scholar at CDDRL, a John M. Olin fellow in law and economics at Stanford Law School, and a fellow of the Stanford Center on Conflict and Negotiation (SCCN). He holds a BA from Columbia, and received his graduate education in economics at Harvard, in politics at Oxford, and in law at Stanford. Mazo's current research concerns how countries create new legal institutions and how they make decisions about what kinds of constitutions to adopt. He is currently working on a book comparing the processes by which elites in several former communist states adopted new constitutions in the mid-1990s. His most recent publication is Post-Communist Paradox: How the Rise of Parliamentarism Coincided with the Demise of Pluralism in Moldova, Working Papers Series, CDDRL, August 2004.

3 Constitutional Roulette: The Russian Parliament s Battles with the President Over Appointing a Prime Minister EUGENE D. MAZO I. INTRODUCTION In December of 1993, Russia adopted a new constitution. 1 Scholars have since attributed the persistence of the country s executive-legislative conflicts to this so-called super-presidential document, which is said to vest the Russian presidency with such enormous power as to transform it into a virtual dictatorship. 2 The new constitution created a separation-of-powers imbalance that grants Russia s presidency great powers in comparison with its parliament. Most scholars believe this imbalance allows Russia s president to dominate Russia s parliament, and to force it into submission. Because the Russian presidency derives much of its power, moreover, from its control over the Post-Doctoral Scholar, Center on Democracy, Development, and the Rule of Law, Stanford University. I owe warm thanks to Gerhard Casper, John Dunlop, Russell Hardin, and Michael McFaul for comments on an earlier draft of this Article. Anatoly Eliseev of the Records Department of the Russian State Duma and Andrei Kunov and Alexei Sitnikov of the Open Economy Institute in Moscow helped me track down the roll call votes. The John M. Olin Program in Law and Economics at Stanford Law School, the Center for Russian, East European, and Eurasian Studies at Stanford University, and the Paul & Daisy Soros Fellowship for New Americans assisted with the research financially. I completed the bulk of the writing while a fellow of the Stanford Center on Conflict and Negotiation, where Byron Bland, Deborah Hensler, David Holloway, and Lee Ross created a stimulating setting to push my thinking and analysis. In 2004, this Article won the Richard S. Goldsmith Prize in Dispute Resolution, and I wish to thank the anonymous judges of that award as well. All errors are my own. 1 See KONST. RF (1993) (Russian Federation), first printed in ROSS. GAZETA, Dec. 25, 1993, at 3, translated in CURRENT DIG. POST-SOVIET PRESS, No. 45, at 4 (1993), and in 16 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Albert P. Blaustein et al. eds., 1993). 2 Stephen Holmes, Superpresidentialism and Its Problems, 2 E. EUR. CONST. REV. 123, ( ); see also THOMAS M. NICHOLS, THE LOGIC OF RUSSIAN PRESIDENTIALISM: INSTITUTIONS AND DEMOCRACY IN POSTCOMMUNISM 11 (1998) ( The Russian system is in fact so strongly presidential that it can be discussed in the same general terms as the American or other strong presidential arrangements. ); Timothy J. Colton, Superpresidentialism and Russia s Backward State, 2 POST-SOVIET AFF (1995). But cf. EUGENE HUSKEY, PRESIDENTIAL POWER IN RUSSIA 11 (1999) ( [T]o argue... that the presidency represents the best entry point for exploring contemporary Russian politics is not to claim that there is a presidential dictatorship or even a superpresidential order in Russia. ) with THOMAS F. REMINGTON, POLITICS IN RUSSIA 53 (1999) ( The president s powers vis-àvis parliament are great but should not be exaggerated. ). As Remington goes on to state, the balance of power, while asymmetrical, is by no means as one-sidedly in favor of the president as is often thought. Id. at 54. Unfortunately, few of the scholars who use the term semipresidential ever define it precisely. 41 STAN. J. INT L L. 200 (2004) 1

4 2 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 country s prime minister, the existence of a prime minister also impedes cooperative executive-legislative relations in Russia, exacerbating further the power imbalance between the branches that has been blamed for hindering Russia s democratic consolidation and derailing its economic transition. 3 Throughout the 1990s, Russia s president and parliament fought against each other frequently, and at times very violently, in the political arena. 4 The country s then-president, Boris Yeltsin, proved to be the victor in most of these confrontations, as most scholars would have expected. And yet, there were a one important occasion when Russia s parliament held the upper hand. This was during the battle between Boris Yeltsin and Russia s parliament over the nomination of the country s prime minister in the autumn of Russia had just defaulted on its foreign debt obligations and devaluated its currency. Its economy was in shambles. Rather than accept the blame for these woes, Yeltsin tried to deflect them on his prime minister, Sergei Kiriyenko, whom he fired and tried to replace with a longtime confidant, Viktor Chernomyrdin. The irony was that earlier in the year, Yeltsin had already fired Chernomyrdin from the exact same post and had replaced him with Kiriyenko. Russia s parliament was growing tired of dealing with revolving-door prime ministers, however. It opposed the firing of Kiriyenko and, rather than accept Yeltsin s proposed alternative, backed a candidate of its own. In the end, parliament s candidate, Yevgeny Primakov, was the person nominated and confirmed for the job. Russia s president and parliament were playing a complex constitutional game here. To appreciate it, it is important to understand the intricate rules governing executive-legislative relations in Russia. Russia s 1993 constitution grants the president the power to nominate a candidate for the post of prime minister. 5 After the president nominates his candidate, it is then parliament s turn to confirm the president s nomination by a simple majority vote. 6 The parliament can also reject the nomination. 7 But if the president s nominee is rejected three times in a row, Russia s 1993 constitution grants the president 3 4 See Andrey Ryabov, Legislative-Executive Relations, in BETWEEN DICTATORSHIP AND DEMOCRACY: RUSSIAN POST-COMMUNIST POLITICAL REFORM 83 (Michael McFaul et al. eds., 2004) (explaining how [t]he transition from a one-party state led by the Communist Party of the Soviet Union to a new politics system based on interaction between legislative and executive institutions was a tortuous process punctuated by a number of conflicts, including an armed conflict between president and parliament in October 1993 ). 5 KONST. RF art. 83(a) (1993) (Russian Federation) ( The President of the Russian Federation appoints the Chairman of the government of the Russian Federation, with the consent of the State Duma. ). A similar clause, but in the passive voice, which appears in Chapter 6 of the Russian Constitution, enumerates the powers of the Government. See id. at art. 111 ( The Chairman of the government of the Russian Federation is appointed by the President of the Russian Federation, with the consent of the State Duma. ). Moreover, the prime minister must be nominated no later than two weeks after the newly elected president takes office or after the government of the Russian Federation reigns, but if the parliament rejects the president s choice of a prime minister, then a second nomination must be put forth within one week. Id. at art. 111(2). 6 Id. at art. 111(3) ( The State Duma is to consider a nomination for Chairman of the government of the Russian Federation presented by the President of the Russian Federation within one week of the day the nomination was submitted. ). 7 The exact language for this rejection is not explicit, but is rather implied from a joint reading of Articles 111(3) & 111(4).

5 2004 Russian Roulette 3 the power to dissolve the parliament and call for new legislative elections. 8 In theory, the result of this unique constitutional provision should be that parliament should always approve the president s choice of prime minister. 9 Individual parliamentary deputies, after all, have little incentive to risk loosing their seats, not to mention the many perks that come with them. 10 But in September of 1998, in the third such round, parliament s candidate was chosen. This Article seeks to examine the constitutional powers of the Russian presidency and parliament over the nomination of the prime minister in closer detail. It does so in order to argue that Russia s executive may not always be as strong or as super-presidential as the conventional wisdom holds. 11 It is true that, on paper, Russia s constitution provides for a strong presidency. Yet this is not the same as guaranteeing Russia a strong president. 12 To put it another way, there may be a difference between the powers granted to an office and the powers able to be used by its occupant. 13 If this seems like a subtle point, it nonetheless is an important one. It is crucial to understand why, on 8 KONST. RF art. 111(4) (1993) (Russian Federation) ( After nominations for Chairman of the government of the Russian Federation have been rejected three times by the State Duma, the President of the Russian Federation appoints a Chairman of the government of the Russian Federation, dissolves the State Duma and schedules new elections. ). This one Section of Article 111 Section (4) is what has led scholars of comparative constitutionalism to call the Russian constitution super-presidential. 9 See HUSKEY, supra note 2, at ( Although parliament retained the formal right to reject a president s appointee to the office of prime minister, or to express no confidence in the sitting Government, it could do so only under the most unappealing of conditions.... [G]iven the uncertainties of Russian politics and the dim job prospects for most unemployed politicians, few deputies would readily sacrifice their mandate to stand for reelection. ). Indeed, it is the perks that come from being a Duma deputy, including a free Moscow apartment, a car and driver, and immunity from criminal prosecution, that gives the incentive for deputies to be especially careful not to lose their parliamentary seats and that, unfortunately, in some cases even provides the incentive for them to run for their seats in the first place. 10 See, e.g., KONST. RF art. 98 (1993) (Russian Federation) ( [D]eputies of the State Duma enjoy inviolability for the duration of the entire term of their mandate. They cannot be detained, arrested or subjected to search unless detained at the scene of a crime, nor can they be subjected to body search except in instances provided by federal law in order to ensure other people s safety. ). In addition to freedom from criminal prosecution which was an incentive for at least some of them to run for parliament in the first place deputies get up to five staff members apiece, and a salary commensurate with that of a federal minister. They also are able to use the telephone for free, have free travel, and enjoy similar medical and social service expenses as members of the government. They are also given cars for official use and receive free housing. See GER P. DEN BERG, COMMENTS TO THE 1993 CONSTITUTION OF THE RUSSIAN FEDERATION 603 (1994). 11 See NICHOLS, supra note 2, at 9 ( Leaving aside the larger debate over hypothetical versions of semipresidentialism, it is clear that in the Russian case the system is semipresidential in structure but presidential in practice. ). If Nichols were correct, however, how would he explain the events of August 1998? Or other times of presidential weakness? 12 See Robert Moser, Executive-Legislative Relations in Russia, , in ZOLTAN BARANY & ROBERT G. MOSER, RUSSIAN POLITICS: CHALLENGES TO DEMOCRATIZATION 67 (2001) (expounding a similar view). Moser and I part ways in that he believes Russia s institutions are strong and its president weak, whereas I believe the institutions are not as strong he posits. For an argument that parliament is stronger than most think, see Thomas Remington, Steven Smith, & Moshe Haspel, Decrees, Law, and Inter-Branch Relations in the Russian Federation, 14 POST-SOVIET AFF (1998). 13 See PHILLIP R. TRIMBLE, INTERNATIONAL LAW: UNITED STATES FOREIGN AFFAIRS LAW (2003) (expressing a similar point in the context of the United States Senate s power to confirm nominations of ambassadors, even though the power to appoint them belongs to the president alone The practical power of the Senate, and the entire Congress for that matter, gives members ample informal opportunities to assure that on occasion their candidates receive a presidential appointment. As a matter of formal law, however, it is clear that the President has the exclusive power to appoint Ambassadors and other officers of the United States. ).

6 4 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 some occasions, a president might be kept from exercising his written constitutional powers, while on others he might even be able to surpass them. 14 I argue that there are many extraconstitutional factors that can restrict a president from exercising his full constitutional powers. These have to do, on the one hand, with the nature of the parliamentary majority that stands opposite him. If parliament is able to cobble together a strong majority to stand in opposition to the president s agenda, then the president will have no alternative but to function as if he has clipped wings. In Russia, parliament rarely acted with much unanimity. Its unwieldy, multiparty character seldom allowed it to oppose the president with a clear majority. On the other hand, a second external factor, but one that is much harder to measure, has to do with Russian society. Though presidents are often inclined to stretch the limits of their constitutional powers, they can be held back by society s temperament. In September 1998, this temperament sided with Russia s parliament. This went a long way toward making it victorious in its negotiations with the president, and to paving the way for what became a new, although ultimately brief, chapter in the history of executive-legislative relations in Russia. This Article explains the outcome of the September 1998 vote by looking at the powers granted by Russia s 1993 constitution to its president and parliament for cabinet formation and cabinet dismissal. Cabinet formation is the formal, constitutional process of nominating and confirming a prime minister to run the day-to-day affairs of government. Cabinet dismissal refers to the right of president and parliament to dismiss the prime minister and his government ministers. In Russia, the latter can be exercised outright by the president, and it is exercised constitutionally by parliament through its ability to cast votes of no confidence in the cabinet. While Russia s president and parliament share numerous overlapping powers, according to which they must agree on certain issues for example, approving the federal budget and making appointments to Russia s Constitutional Court, Supreme Court, and Supreme Commercial Court it is the nomination and approval of the prime minister that has received the most attention. This is considered their most important overlapping power. It is analyzed here, moreover, because of the available evidence: Data exist, in the form of roll call votes, for all such cabinet formation and dismissal decisions taken since In the interest of space, analysis of overlapping powers not related to assembling a government, or to punishing parliament when it refuses to cooperate with the president in doing so, is excluded. Moreover, the analysis in this Article is restricted to an examination of executive-legislative relations only under the Russian constitution of 1993 and only to the presidency of Boris Yeltsin. While problematic executive-legislative relations also characterized the First Russian Republic ( ) which existed from the time of the fall of the Soviet Union to the passage of Yeltsin s new constitution its 14 See id. at 6 (2003) (expressing a similar point, in regard to the United States, in finding that the resolution of a given dispute may depend on who is politically stronger. President Reagan may have prevailed in a situation where President Clinton may have had to compromise. ). 15 I thank Andrei Kunov and Alexei Sitnikov, both of the Open Economy Institute in Moscow, for sharing their database with me, as well as the Records Department of the Russian State Duma for providing the original votes and checking on their accuracy. Any remaining errors are my own.

7 2004 Russian Roulette 5 battles were played out under a different set of constitutional rules from the conflicts of the Second Russian Republic, which was created in 1993 and survives to the present day. 16 In addition, because the fierce conflicts over prime ministerial nominations that were characteristic of Yeltsin era have not occurred during the presidency of Vladimir Putin, the bulk of the analysis is restricted to Yeltsin s presidency. This is not to say that analyzing executivelegislative relations under Putin is unimportant. It is just to accept that they were regulated in a very different fashion, as the Conclusion will discuss. The argument proceeds in five parts. Part II introduces the reader to the scholarly literature on comparative constitutional design. It argues that while there are three dominant separation-of-powers typologies within the universe of democratic states, scholars have focused their energies on comparing only two of them presidential and parliamentary constitutions while the third model, semipresidentialism, has remained understudied. Part III relates how Russia came to adopt a semipresidential constitution in 1993 before examining the formal, written power of Russia s president and parliament. From here, Part IV turns to a discussion of how these formal powers have been used in practice. It recounts the history of Boris Yeltsin s prime ministerial Russian roulette his rapid approach to hiring and firing prime ministers which culminated in the vindication of parliament s candidate in September Part V explains why the State Duma was more successful than the president on that one particular occasion. Finally, Part VI contrasts the parliamentarypresidential relationship under Vladimir Putin, and then concludes. II. THREE MODELS OF CONSTITUTIONALISM A. Constitutions and Democracy How a constitution separates executive and legislative powers is of fundamental importance to the stability of the political system over which it presides. Constitutions dictate the rules of the game through which the executive and legislative branches of a country govern, and thus provide the main template through which politics is played. For a democracy to function efficiently, the requirement of a constitution has gone virtually undisputed One scholar describes the changes between the two sets of institutions in the following manner: Consistent with Yeltin s Decree 1400 in September [1993], the new constitution preserved Russia s office of the president and augmented the powers of the chief executive, but it changed the structure of the legislative branch and altered the relationship between central and subnational governments. In other words, Yeltsin s new plan sought to resolve the institutional impasse that had polarized politics in Russia for the previous two years by giving the president more power. Just as his method of drafting these rules broke with past practices, Yeltsin s new organizational structure represented a genuine break from the past organization of state institutions. MICHAEL MCFAUL, RUSSIA S UNFINISHED REVOLUTION: POLITICAL CHANGE FROM GORBACHEV TO PUTIN 211 (2001). There are some good studies analyzing executive-legislative relations between 1991 and See, e.g., Ryabov, supra note 4, at 87-91; see also Petra Schleiter, Legislative Politics, Institutional Choice, and Democratic Stability: The Dynamics of Executive Control in Russia, (Ph.D. dissertation, Oxford University, 1998); VLADIMIR A. RYZHKOV, CHETVERTAYA RESPUBLIKA [The Fourth Republic] (2000). 17 The definition of democracy is itself disputed. Compare JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 269 (1943) (defining democracy as the institutional arrangement for

8 6 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 With the exception of only three modern states today the United Kingdom, New Zealand, and Israel all democracies possess a written constitution, and most nondemocracies do as well. Alfred Stepan and Cindy Skach tell us that constitutions comprise the basic decision rules and incentive systems concerning government formation, the conditions under which governments can continue to rule, and the conditions by which they can be terminated democratically. 18 Indeed, scholars have come to recognize that the kind of constitutional framework adopted by a new state can have a significant impact on the success of its democratic performance. 19 As James March and Johan Olson put it: political democracy depends not only on economic and social conditions but also on the design of political institutions. 20 It was in the late 1980s and early 1990s, as the states of Eastern Europe began transitioning away from authoritarian rule and fashioning new constitutions for themselves, that academics first took an interest in ascertaining whether there was a correlation between the type of constitution adopted by a new state and its chances for democratic survival. Yet while the number of democracies in the world has increased dramatically since then, following what Samuel P. Huntington has referred to as the third wave of democratization, 21 the number of dominant constitutional typologies governing them still remains fairly small. Today, most of the world s democratic arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people s vote ) with THE FEDERALIST, No.10, at (Robert Scigliano ed., 2000) (claiming that competition is essential to democracy). 18 Alfred Stepan & Cindy Skach, Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism, 46 WORLD POL. 1, 2 (1993). Moreover, claim Stepan and Skach, [m]ore than simply one of the many dimensions of a democratic system, constitutions create much of the overall system of incentives and organizations within which the other institutions and dimensions found in the many types of democracies are structured and processed. Id. at See R. KENT WEAVER & BERT A. ROCKMAN, DO INSTITUTIONS MATTER? GOVERNMENT CAPABILITIES IN THE UNITED STATES AND ABROAD (1993) (arguing that government effectiveness varies depending on institutional structures); Kathleen Thelen & Sven Steinmo, Historical Institutionalism in Comparative Politics, in STRUCTURING POLITICS: HISTORICAL INSTITUTIONALISM IN COMPARATIVE PERSPECTIVE 1-32 (Sven Steinmo et al. eds., 1992) (arguing the state is important as a political actor). 20 James G. March & Johan P. Olson, The New Institutionalism: Organizational Factors in Political Life, 78 AM. POL. SCI. REV. 734, 738 (1984). 21 See SAMUEL HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY (1991). But see Michael McFaul, The Fourth Wave of Democracy and Dictatorship: Noncooperative Transitions in the Postcommunist World, 54 WORLD POL. 212, 242 (2002) (arguing that the metaphor of the third wave is inaccurate for describing change in postcommunist states, and that the causal mechanisms at play were so different and the regime types so varied that the postcommunist experience may be better captured by a different theory and a separate label the fourth wave of regime change ); Doorensplee Rensket, Reassessing the Three Waves of Democratization, 52 WORLD POL. 384, (2000) (criticizing Huntington s third wave on conceptual and methodological grounds). Although the number of democracies remains disputed not only because scholars disagree about what criteria count to make a democracy, but also because countries often go in and out of democratic phases it remains that their number has increased in the last decade. See, e.g., FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD 13 (2004) (explaining that [o]ver the last century the world has been shaped by one trend above all others the rise of democracy. In 1990 not a single country had what we would today consider a democracy: a government created by elections in which every adult citizen could vote. Today 119 do, comprising 62 percent of all countries in the world. ); but see Eugene D. Mazo, What is Democracy? STANFORD CENTER ON DEMOCRACY, DEVELOPMENT, AND THE RULE OF LAW WORKING PAPER 1, 3 (forthcoming 2005) (arguing that the number of democracies can be increased or decreased by changing the definition of democracy, and that the term should be understood as falling along a continuum that from minimalist procedural definitions, on the one hand, to a maximal substantive definitions, on the other).

9 2004 Russian Roulette 7 constitutions can be grouped into one of three categories parliamentary, presidential, or semipresidential. 22 In reviewing the scholarly literature on comparative constitutionalism, however, one finds that a great deal of research has been devoted to comparing presidential and parliamentary systems, while less light has been shed on the study of semipresidentialism, a separation-ofpowers arrangement that carries mixed elements of the other two. This is the category into which Russia s constitution fits. B. Presidentialism Versus Parliamentarism The parliamentary system of constitutional government Britain s Westminster model is the leading example is one in which the only democratically legitimate institution is parliament. Executive authority is therefore completely dependent upon parliamentary confidence. 23 According to Stepan and Skach, parliamentary constitutions are recognized by two dominant characteristics. First, the chief executive s power must be supported by a majority of the legislature and can fall if the chief executive receives a vote of no confidence. Second, the executive has the capacity to dissolve the legislature and call for new elections. 24 In most parliamentary systems, the chief executive is the head of government and known as the prime minister. 25 He is also elected by parliament, and not by popular vote. 26 Two characteristics also define presidential constitutions. First, both the executive and the legislature are directly elected. Accordingly, the system is one of dual democratic legitimacy. 27 Because the chief executive is elected directly by the citizens, he does not rely on parliamentary approval for his legitimacy. 28 This chief executive is usually called a president and serves as both head of government and head of state. And he maintains considerable powers, including full control of the cabinet and of the military. Second, both the president and the legislature are elected for fixed terms of office. As a result, the president s tenure in office is independent of the legislature, just as the survival of the legislature is independent of the president. In Stepan and Skach s view, the main difference between these two constitutional systems is that the parliamentary system is characterized by the 22 Of course, democracy necessarily includes a mix of institutions, not just the right constitution. See Philippe C. Schmitter & Terry Lynn Karl, What Democracy Is... and Is Not, 3 J. DEMOCRACY 76 (1991). Also, the right institutions themselves do not define a democracy, and what does remains controversial. For example, the importance to a functioning democracy of other institutional arrangements, such as electoral laws and the party system that results from them, has also been stressed. 23 See Juan Linz, Presidential or Parliamentary Democracy: Does It Make a Difference? in 1 THE FAILURE OF PRESIDENTIAL DEMOCRACY 52 (Juan Linz & Arturo Valenzuela eds., 1994). 24 Stepan & Skach, supra note 18, at Sometimes in a parliamentary system, a president can be elected as head of state but again, this is a symbolic gesture, and the individual holding such office does not have any real power. 26 Even though many parliamentary constitutions allow for directly elected presidents as well, these presidents are figureheads who rarely hold more than symbolic power. 27 Stepan and Skach, supra note, 22, at 3. In some rare cases, such as in the United States, the president can also be indirectly elected through an electoral college whose members, in turn, are elected by citizens the salient factor being that the electoral college is not comprised of legislators. 28 Linz, supra note 23, at 52.

10 8 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 mutual dependence 29 of the executive and parliament, whereas the presidential system is characterized by their mutual independence. 30 If the British constitutional system is the prototype of parliamentary government, then the prototype of the presidential constitution is the constitution of the United States. 31 It was the first national constitution to experiment significantly with the separation of powers between president and parliament, providing each branch with a way to check and balance the powers of the other. 32 As students of American constitutionalism know, over the years a great deal of ink has been spilled over the separation of powers in the U.S. Constitution, and on the nuances explaining how it works. 33 Richard Neustadt, a scholar of the American presidency, once claimed that the framers of the U.S. Constitution did not create a government of separated powers but rather a government of separated institutions sharing power. 34 Whether power is shared or separated, however, is not the point. Rather, the important element of any presidential system is that both the executive and legislative branches maintain separate sources of legitimacy. 35 Each is elected separately for set 29 Id. at Id.; see also Cindy Skach, Semi-Presidentialism and Democracy: The French Fifth Republic, Weimar Germany, and Postcommunist Russia in Comparative Perspective (1999) (unpublished Ph.D. dissertation, Oxford University) (on file with author) (explaining how the semi-presidential category does not fit into either the mutually dependent or mutually independent dichotomies of pure presidentialism or parliamentarianism). 31 See U.S. CONST. arts. I & II. 32 Saying it is the first national constitution to do so implies, of course, that subnational constitutions used separation-of-powers mechanisms before the U.S. Constitution did. Indeed, the ideas used by the framers of the U.S. Constitution can be traced back to many of the state constitutions that were in existence at the time the U.S. federal constitution was created, and which arguably can be said to be among the first constitutions anywhere to experiment with a separation of powers between the executive and legislative branches as we understand that concept today. Such systems of separation of powers were first used in the state constitutions of the original thirteen states which were in existence while the federal government functioned under the Articles of Confederation. Compare MD. DECL. OF RTS. (1776) (providing that the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other. ) and VA. B. OF RTS. (1776) ( The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other: nor shall any person exercise the powers of more than one of them, at the same time. ) with GERHARD CASPER, SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD (1997) (arguing, nonetheless, that [a]s one reviews the state constitutions adopted between 1776 and 1787 for the ways in which they implemented separation of powers notions, it is striking that the particulars display an exceedingly weak version of separation of powers. ). The power of judicial review, however providing the checks and balances power to the judiciary as well was not provided for in the U.S. Constitution, but was rather famously granted to the U.S. Supreme Court after Chief Justice Marshall s decision in Marbury v. Madison (1803). How judicial review has impinged upon separation-of-powers questions has been an area of controversy. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980). 33 See, e.g., J. GARVEY & T. ALEXANDER ALEINIKOFF, MODERN CONSTITUTIONAL THEORY: A READER (2d ed. 1991) (focusing on theoretical aspects of the separation of powers issue, although focusing also on the judiciary); HAROLD HONGJU KOH, THE FOREIGN AFFAIRS CONSTITUTION (1990); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996) (tracing the original separation of powers debates among the framers); PETER M. SHANE & HAROLD H. BRUFF, SEPARATION OF POWERS LAW (1996); Samuel W. Choper, Considering Power in Separation of Powers, 46 STAN. L. REV. 361 (1994). 34 RICHARD N. NEUSTADT, PRESIDENTIAL POWER 33 (1960). 35 This separate legitimacy, on the other hand, has often led the presidential system to be criticized for leading to divided government. See, e.g., DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, (1991). Though legislation has to be initiated by parliament and signed by the president, it is often the case that the majority party in parliament and the

11 2004 Russian Roulette 9 terms of office, and the tenure of a member of one branch of government cannot be dismissed, altered, or interfered with by any member of the other branch. Only by impeachment can a president be dismissed. But this is an extraordinary measure that can be used only in extraordinary circumstances. 36 C. Which Constitutional System is Best? It has always been understood that presidential and parliamentary constitutional systems have their benefits and burdens. Nonetheless, for some time, scholars have promoted parliamentary over presidential government. 37 Among other things, presidentialism has been criticized for its institutional rigidity. Often, presidential systems give rise to parliaments that support political positions contrary to those advocated by the president leading to situation of divided government. Simply put, it is more difficult to govern and shape policy when the president is not from the same party as the majority of the legislature. Thus, while presidential systems can provide for good checks and balances on the one hand, these checks also have the potential of deadlocking the system and leading to constitutional conflicts in states that lack a long tradition of democracy, on the other. In such cases, presidentialism makes it unclear whether the legislative or executive branch should speak on behalf of the people. In addition, in times of crisis, a president s fixed term of office, which is otherwise meant to ensure the stability of the executive, can work as a handicap when it fails to allow for a swift turnover of leadership. In defense of parliamentarism, academics have often cited the fact that most of the stable democracies in Europe after World War II were parliamentary and that only one presidential constitution had truly withstood the test of time that of the United States. As Juan Linz, an ardent opponent of presidential government, argues, the superior historical performance of parliamentary democracies is no accident. 38 Among its many advantages, it has been said that the parliamentary government is more stable and that it is party affiliation of the president are different. Of course, the U.S. president has argued that certain realms, such as foreign affairs, are reserved for himself, even though the constitutionality of such an arrangement has been often disputed. We saw this with the recent debate over whether to invade Iraq, for example, in which the voice of Congress was curiously absent. Such divided government has pushed the presidential system in two directions. On the one hand, scholars such as G. Bingham Powell assert that the division of executive and legislative authority often make it difficult to create and implement coherent, positive programs to deal with national problems. G. BINGHAM POWELL, JR., CONTEMPORARY DEMOCRACIES: PARTICIPATION, STABILITY, AND VIOLENCE 218 (1982). On the other hand, there are careful observers who actually see a benefit to divided government. As Nelson Polsby explains, divided government means that in the practical politics of today, legislation frequently requires a complicated sort of agreement: a coalition must be built that crosses... party lines. This coalition is the product of a series of negotiations that might ultimately lead to better legislation. Nelson W. Polsby, Does Congress Work? XLVI BULL. OF THE AM. ACAD. OF ARTS & SCI. PAGE CITE, 33 (1993) (quoted in SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING 90 (1997)). 37 See Arend Lijphart, Democracies: Forms, Performance, and Constitutional Engineering, 25 EUR. J. POL. RES. PAGE (1994); Juan Linz, The Virtues of Parliamentarianism, 1 J. DEMOCRACY PAGE (1990); Scott Mainwaring, Presidentialism, Multipartism, and Democracy: The Difficult Combination, 26 COMP. POL. STUD. PAGE (1993). 38 Juan J. Linz, The Perils of Presidentialism, 1 J. DEMOCRACY 52 (1990).

12 10 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 more representative in ethnically and religiously divided societies. 39 Adam Przeworski and his colleagues have also posited that, on average, parliamentary regimes last longer, much longer, then presidential ones. 40 Many of the early debates regarding the benefits of different constitutional systems were case-specific. However, scholars eventually began conducting empirical analyses based on cross-regional evidence to examine the impact of different constitutional frameworks on democratic stability. 41 For example, Stepan and Skach constructed several data sets using the presidential and parliamentary constitutional typologies to see which correlated better with democratic consolidation. 42 From a sample of 53 developing countries that functioned democratically for at least one year between 1973 and 1989, they found that 28 had parliamentary constitutions while 25 had presidential constitutions. Of the 28 countries with parliamentary constitutions, the authors found 17 (or 61%) that had been continuously democratic for a ten-year consecutive period between 1973 and 1989, whereas of the 25 countries with presidential constitutions, only 5 (or 20%) were continuously democratic for a period of ten years. At the same time, only 5 (or 18%) of the 28 countries with parliamentary constitutions experienced a military coup between 1973 and 1989, whereas the number of countries in this category with presidential constitutions was significantly larger 10 (or 40%) of 25 countries. 43 Elsewhere, Stepan and Skach looked at the 93 countries that became independent between 1945 and 1979 and compared this with the number, for each type of constitutional system, that remained democratic continuously between 1980 and Of the 41 countries with parliamentary constitutions that came into existence between 1945 and 1979, they found that 15 remained continuous democracies from 1980 to 1989, while not one of the 36 new countries with a presidential constitution managed to remain democratic between 1980 and This led the authors to conclude that parliamentary constitutions present a more supportive evolutionary framework than presidential constitutions for consolidating democracy. 44 As they explain it, the fixed mandates of the executive in a presidential constitutional regime create the possibility of a political impasse between the chief executive and 39 See AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES: A COMPARATIVE EXPLORATION PINCITE (1977). 40 Adam Przeworeski, et. al., What Makes Democracies Endure?, 7 J. DEMOCRACY PAGE, 47 (1966). 41 See, e.g., Timothy Frye, Presidents, Parliaments, and Democracy: Insights from the Post- Communist World, in THE ARCHITECTURE OF DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT, AND DEMOCRACY (Andrew Reynolds ed. 2002); Jose Antonio Cheibub, Presidentialism and Democratic Performance, in THE ARCHITECTURE OF DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT, AND DEMOCRACY (Andrew Reynolds ed. 2002). This is a New Footnote! 42 They define a pure parliamentary system as one of mutual dependence: (1) [T]he chief executive power must be supported by a majority of the legislature and can fall if it receives a vote of no confidence, and (2) the executive power has the capacity to dissolve the legislature and call for elections. Meanwhile, a pure presidential regime is a system of mutual independence: (1) [T]he legislative power has a fixed electoral mandate that is its own source of legitimacy, and (2) the chief executive power also has its own mandate that is also its own source of legitimacy. Stepan & Skach, supra note 18, at Need Citation. 44 Id. at 22.

13 2004 Russian Roulette 11 the legislative body for which there is no constitutional[] impasse-breaking device. 45 In the end, they also found that parliamentary democracies tend to increase the degrees of freedom that facilitate the momentous tasks of economic and social restructuring facing new democracies as they simultaneously attempt to consolidate their democratic institutions. 46 While the majority of the scholarship echoes Stepan and Skach s conclusion, not everyone has criticized presidential government as the weaker of the two systems. Opponents of presidentialism have, among other things, been accused of generalizing too heavily from the Latin American experience. 47 By contrast, scholars have noted that Third World countries with parliamentary constitutions have been just as unstable as those with presidential constitutions. Donald Horowitz, for instance, argues that parliamentary constitutional government has largely failed in postcolonial Africa, where the British Westminster model has resulted in a succession of coups and in the prolonged leadership of authoritarian rulers. 48 At the same time, efforts at democratic rule in countries like Nigeria have been more successful under presidential constitutions than under parliamentary ones. Moreover, there are other developing countries in Latin America notably Costa Rica that have had perfectly stable presidential regimes. Unfortunately, the available evidence fails to prove convincingly which constitutional structure is best much less that one or the other actually guarantees democratic stability. Indeed, as Seymour Martin Lipset explains: It is not obvious that constitutional variations in type of executive are closely linked with democratic and authoritarian outcomes. 49 Lipset posits that a state s political and economic culture, respect for institutions, and history of accepting the rule of law 50 may have some influence on democratic stability as well. Simply put, there are many complicated variables at play here, and equating one type of constitutional system with democratic stability or instability may be premature. 51 Even so, there has been one curious omission from the debates surrounding the merits of each of these constitutional systems: Almost no ink has been spilled identifying the pros and cons of 45 Id. at Id. at See Donald Horowitz, Comparing Democratic Systems, 1 J. DEMOCRACY PAGE, 74 (1990), (explaining that Linz s claims... are based on a regionally skewed and highly selective sample of comparative experience, principally from Latin America ). 48 Id. (showing that Linz s frequent references to Brazil, Colombia, Venezuel, and Chile attest... that presidentialism has contributed to instability in Latin America, whereas [i]f... his focus has been on instability in postcolonial Asia and Africa, the institutional villain would surely have been parliamentary systems. Indeed, Sir Arthur Lewis argued 25 years ago in his lectures... that the inherited Westminster system of parliamentary democracy was responsible for much of the authoritarianism then emerging in English-speaking Africa. ). 49 Seymour Martin Lipset, The Centrality of Political Culture, 1 J. DEMOCRACY PAGE, (1990). 50 Id. 51 See Eugene D. Mazo, Post-Communist Paradox: How the Rise of Parliamentariam Led to the Demise of Pluralism in Moldova, STANFORD CENTER ON DEMOCRACY, DEVELOPMENT, AND THE RULE OF LAW WORKING PAPER SERIES, No. 17 (2004) (arguing that sometimes parliamentary constitutions, such as the kind adopted in Moldova in 2000, may cause a hindrance to democracy where presidentialism did not because of the latter s systems of checks and balances, especially where presidentialism earlier ensured a kind of pluralism by default ).

14 12 STANFORD JOURNAL OF INTERNATIONAL LAW 41:200 semipresidential constitutional government despite its recent prominence among countries adopting new constitutions. D. Semipresidentialism In semipresidential constitutions, a prime minister and a president can both serve in the executive branch, with power alternating between them. This arrangement can lead to more flexibility and increased democratic stability. As a constitutional system, semipresidentialism is most famously associated with the 1958 constitution of the French Fifth Republic. One of the first people to study this typology was the French constitutional law scholar Maurice Duverger. 52 However, the lack of known cases of this constitutional type, in comparison with the two dominant constitutional forms, caused the link between semipresidentialism and democratic consolidation to be rarely studied beyond Duverger s work. 53 Stepan and Skach, in the 1993 study above, find only two long-standing semipresidential democracies: France and Portugal. They also found that no new democracies that became independent between 1945 and 1979 picked a semipresidential constitution. 54 Arend Lijphart, in his famous 1984 study of the twenty-one democracies in continuous existence since World War II, found only one that was semipresidential. 55 Ten years later, in a study of the thirty-four counties with thirty years of uninterrupted democracy between 1959 and 1980, Mainwaring and Carey found that only two were semipresidential. 56 Duverger himself identified only five semipresidential constitutions in Europe besides the French constitution at the time of his early writings on the subject. These were in Finland, Austria, Ireland, Iceland, and Portugal, which adopted a semipresidential constitution in Interwar Weimar Germany also possessed such a constitution between 1919 and Of the six functioning European cases identified by Duverger, however, three Austria, Ireland, and Iceland were found to have weak, figurehead presidencies, and to function, essentially, like parliamentary regimes. Moreover, although the Weimar Republic was one of the first states to experiment with a semipresidential constitution, the powers of the Weimar president were used 52 Maurice Duverger, A New Political System Model: Semipresidential Government, 8 EUR. J. POL. RES. 165, (1980). 53 See generally ROBERT ELGIE, SEMIPRESIDENTIALISM IN EUROPE (1999) (listing the following semipresidential regimes: Austria, Finland, France, Iceland, Bulgaria, Lithuania, Poland, Romania, Russia, Slovenia, and Ukraine). Some of these, others assert, function more as presidential regimes and some as parliamentary. 54 Stepan & Skach, supra note 18, at AREND LIJPHART, DEMOCRACIES: PATTERNS OF MAJORITARIAN AND CONSENSUS GOVERNMENT IN TWENTY-ONE COUNTRIES 38 (1984). This book has been updated in 1999 to list 36 democracies, with perhaps more cases of semipresidentialism. Even with the update, the point remains that there are few long-standing cases. 56 NEED A FOOTNOTE. 57 Duverger, supra note 52, at 165. Juan Linz claims that such a system was advocated by other scholars before the existence of Weimar Germany. See Linz, supra note 23, at 49; see also WERNER KALTEFLEITER, DIE FUNKTIONEN DES STAATSÜBERHAUPTES (1970) (outlining the origins of the presidency of the Weimar Republic and tracing them, partly, to Weber and his influence on Hugo Preuss, who drafted the Weimar Constitution).