"We'll probably get rid of the president sooner or later."
Elena Lukyanova on the legal basis for reforms
Author: Tatyana Rybakova
The final discussion on the "Normalization Platform: Returning the Future" project, in which experts present their vision for a post-Putin Russia and, most importantly, outline the steps that will need to be taken during the transition period, was held by "Speaking Not Moscow" with renowned constitutional lawyer, co-founder and rector of the Free University, and Doctor of Law Elena Lukyanova. They discussed key issues: how to legally implement the necessary changes, how to reform the courts and law enforcement agencies, what the political structure of the new Russia might look like, and what is essential in democracy.
The "Normalization Platform: Reclaiming the Future" project, particularly Kirill Rogov's inaugural report, discusses extensively the legal aspects of restructuring post-Putin Russia. But what needs to be done from the perspective of a constitutional lawyer?
"I'll only discuss part of Rogov's report—honestly, I find his proposals the most appropriate. Specifically, he proposes repealing the 2020 constitutional amendments on procedural grounds, as they were adopted completely illegally, in violation of Chapter 9 of the Constitution. Further, his main points concern, first and foremost, federalization. For us lawyers, this is the most difficult issue, because we can't resolve it on our own—it requires knowledge of political science and political geography. But we are prepared to describe what is being proposed."
"The Federation must be built from the bottom up"
Rogov proposes a three-tier system: municipal, regional, and federal. This is, in fact, the most sensible option, since we don't really have a federation. In fact, there wasn't one in the Soviet Union either. Although there were many more federal features back then, it was an imperial structure: a vertical chain of command from the top, where the central government itself—the imperial government—differentiated the regions. It's like today: some have certain rights, others have others, some don't have to obey the laws, and everyone begs for budget subsidies. In other words, the system is standing on its head. It needs to be turned on its feet. That is, when we outline the division of powers between the center and the local governments, we should be working from the bottom up, not the top down. Today, we have it written down that the federation has certain rights, the constituent entities, along with the federation, have certain rights, and everything else is secondary. And local self-government, in general, according to the 2020 constitutional amendments, is integrated into a unified system of government, which completely negates the principles of local self-government.
So let's start from the bottom up: without necessarily limiting local self-government, let's remove it from the system of government, then move to the regions, and as a residual principle, we'll have a center. Then it will be a federation. How many regions it will have is something we'll debate later. But a three-tier federal system, built not from the top down, but from the bottom up—that's the most important thing. Without it, we won't have any democracy.
The President, Parliament and the "Constitution of Fears"
But democracy cannot exist without much else. Rogov's model is based on the 1993 Constitution: president-parliament-government. In purely theoretical terms, the presidential-parliamentary model is more flexible and dynamic than a purely parliamentary one; decisions are made more quickly.
So, a semi-presidential model?
"No, it's not a semi-presidential model; it's a presidential-parliamentary model, where there's both a president and a parliament with specific powers. There's also a model where the president is purely nominal, but that's not a parliamentary-presidential model; it's still a parliamentary model. Yes, in small countries, that's fine, more or less convenient, but even then, we constantly see coalitions crumble under multi-party systems, dragging their feet on budgetary issues. Such a model requires a strong democratic culture and a strong party system."
But something seems to be shaping up in all the opposition's proposals: a Constitution of Fears. We are all so terrified of the president's overconcentration of power and his "strong hand" that most proposals favor a purely parliamentary republic with a nominal president who performs purely representative functions as head of state: signing international agreements, awarding awards, handling citizenship issues, and representing the country.
This system exists in many countries, and it didn't stop Milo Djukanovic in Montenegro, for example, from remaining in power for decades, switching back and forth between prime minister and president. Or Aleksandar Vučić in Serbia. Or Viktor Orbán in Hungary.
"No, wait a minute. Vučić and Đukanović swapped seats, while Orbán was always prime minister. And these aren't parliamentary republics. A parliamentary republic is one where the president serves nominally; he has no connection to the government whatsoever. Where the president heads the government, it's a presidential republic. If the president heads and forms the government, even with the help of parliament, that's a presidential republic. So, no, these aren't relevant examples."
But let's return to Russia. Imagine such a vast country with a complex parliament, where one chamber represents the regions—we'll have a long time to learn how to interact with each other. Although I suspect this Constitution of Fears will play a role, and there will be a huge debate about which form of government to choose. And, most likely, sooner or later, we will get rid of the president. There's an example: Paraguay. They had an authoritarian regime for so long that the current constitution allows the president to be elected only once. But at some point in its development, one term wasn't enough for any given policy, and the question arose about electing the president twice. So the people of the capital took to the streets, even setting fire to the parliament. Ultimately, the proposal failed; fears played a role, and the people didn't allow it. Although, of course, it would have been rational to elect the president for two terms.
The Federation Council and the separation of powers
Let's return to Russia. Regarding the Federation Council, I completely agree with Rogov that there should be direct elections, as stipulated in the transitional provisions of the Constitution.
What about the proposal to elect at least two senators from the region who took first and second place in the elections?
— So, the first transitional Federation Council in 2003 was elected according to this principle—two senators per region. But Rogov goes further and proposes not just two, but at least two: one per million residents, plus one more per region. I like this, although I don't quite understand how this will be implemented in practice. I understand how one senator per million residents would be elected, but I don't quite understand how one senator per region would be elected. But this can be thought about, it can be outlined. I believe it is completely justified. Of course, the equality of the regions suffers a little, but our Article 5 of the Constitution, which deals with this, is already flawed. Because it first states that all federal subjects are equal, and then it says that some republics have their own constitution, while others, with different names, only have a charter. This is already inequality. The contradictions are directly contained in Article 5. Everything else is reasonable if there is a separation of powers, if we remove the law enforcement agencies and the courts from the president's control—completely. That is, the president and the presidential administration have nothing to do with this. Then there will be a balance of power among the branches of government, including the security forces, with the government and parliament equally weighted.
Courts, security forces, and FSB lustration
Regarding law enforcement. We're constantly told we need independent courts, a different law enforcement agency, and legal reform. But where can we get them, and what should we do during the transition period? Rogov also proposes a three-tier system of law enforcement agencies, but he frankly admits that this is a bird's-eye view.
"It's not even about the three-tier system; the problem is that everyone is tied to the president. The president appoints the leadership of all the security ministries and agencies. They report directly to him, plus the Ministry of Foreign Affairs. They are completely outside the control of parliament. If we remove them from parliament, a dispute arises. Judges: the president appoints all judges in the country, except for magistrates. All of them. And the Supreme Court is formed in exactly the same way, because only the president has the right to propose a candidate for a judge of the Federation Council."
And how should it be?
"We'll figure that out. The main thing is that everything isn't organized in a single center. A three-tier system would work, along with some partial election of judges. But I'd still ask the judicial experts about this: Sergei Pashin, Tamara Morshchakova. We need to return to the judicial reform they conceived back then; it was published in 1993 and implementation began. That's what we need to get back to.
Was it in this judicial reform that the institution of jury was prescribed?
— Yes. Juries still exist, but the criminal code currently limits the categories of cases in which they can make decisions and deliver verdicts. Just recently, Pashin spoke in an interview about the judicial counter-reform that began around 2002—the so-called Dmitry Kozak reform. As a result, judges were effectively integrated into the executive hierarchy. And judges cannot be integrated into the executive hierarchy; a judge must be an arbitrator between the state and the authorities. This applies at all levels: when regulatory acts are appealed, and in criminal and civil justice proceedings. And, of course, jury trials must be fully restored.
What to do during the transition period? Where to find specialists?
"As for the judicial system, I believe we have enough specialists. Courts cannot be suspended; they must function continuously. We cannot fire all judges and halt the civil and criminal justice systems. Therefore, I think they should be retired, and regulations should be introduced requiring judges who worked in, let's say, punitive bodies—law enforcement agencies, the prosecutor's office—to work as lawyers for at least five years, if not more, before being reappointed to judicial office. We currently have no access to lawyers, and the courts should be human rights-based, not punitive. And gradually, while judges are retired, a very rigorous recertification process will have to take place. This will be difficult work, a long process: recertification of judges and the recruitment of new judges.
We're still considering and discussing what to do with the law enforcement agencies. We desperately need a security specialist who knows the system from the inside and what's going on there. I would, of course, purge the FSB, really harshly, and replace it with another agency, recruiting new people. That would be a very difficult situation. But I can definitely say about judges that we have enough qualified lawyers, who are not currently being selected as judges because the presidential administration selects judges based on loyalty. We certainly need at least half of the judges. As for the prosecutor's office and the Ministry of Internal Affairs, I think they're curable, but the FSB is incurable. But even there, the rules need to be changed, the incentive system, the reporting system—just like the reporting system for teachers, by the way.
Cleansing Laws and Anti-Corruption Reform
Let's talk about other legal parameters of the proposed reforms.
"What I like about Rogov's concept isn't so much what he proposes, but the fact that the goals are set from the start: what we want to achieve. Usually, people eclectically take bits and pieces and say, 'Well, we need to do this this way, and we need to do that that way.' But Rogov first sets the goals and then explains how we'll achieve them."
In my opinion, the concept lacks economic legislation. Because political competition is directly dependent on economic competition. We can easily revamp the Civil Code; it was very well written from the start, all four volumes; we can easily rid it of the layers of the frantic printing of recent years. Electoral legislation is similarly being streamlined to match the 1993 law; there's no need to sweat that either. We're simply repealing all the nastiness they introduced there, starting in 2002, with Beslan. As for party legislation, we've already effectively rewritten the law on parties to streamline this. But we absolutely need new antimonopoly legislation, and we absolutely need very strong anti-corruption legislation. As far as I know, Transparency International has everything ready regarding anti-corruption legislation. True, they struggled to implement it against government officials even before the war, but the anti-corruption legislation is essentially ready.
The Antimonopoly Service Law and antimonopoly legislation need to be rewritten. There are already some developments here—given everything that's been happening in the country over the past 30 years, a great deal has been accomplished. Many good young people have been trained and prepared to think about this, not only in the center but in the regions as well.
What exactly needs to be introduced into anti-corruption legislation? For example, should a presumption of guilt be introduced for officials regarding the legality of their income? Russia, it seems, never ratified Article 20 of the UN Convention against Corruption, which stipulates that officials must confirm their income. Now, officials have been completely exempted from the requirement to publicly disclose their income.
— Yes, that's right: citizens are permitted to do everything that isn't prohibited, while the state and officials are permitted only what is permitted. This isn't a presumption of guilt; it's the burden of proof—who bears it. It doesn't fall on citizens, but it does fall on officials. And here, of course, we need to create, following the example of our Ukrainian colleagues, special anti-corruption courts and agencies that will operate independently of other courts and agencies. This won't be easy, because we don't have such a tradition, such a skill; we'll need to train specialized people. This won't go smoothly at all; we see that in Ukraine, too, this is somewhat stalled. But we need to educate the judges. It's crucial to teach people that there are no such things as quick trials. Quick trials are bad trials. And here everyone is screaming: where are the sentences, where are the jail terms? There are no quick, good trials. Real courts are slow, with a serious assessment of evidence. And this is very, very important. Little by little, we'll get there. Yes, they will be slow. But every piece of evidence of guilt or innocence must be carefully assessed by the courts.
I think we'll have to increase the number of judges. Given the workload that every judge faces today, we can't ask them to deliver good judgments. We can't, because they can't handle it. We definitely need to introduce administrative courts, because administrative cases are overloading the courts of general jurisdiction. Administrative courts are a very effective tool. They were built into our judicial reform; we just didn't have time to implement them when the counter-reform began. Of course, these cases need to be transferred to a separate court. And we'll have specialists there, handling labor disputes where there are no property claims, administrative cases, and appeals of regulatory acts—everything that's currently covered by the Code of Administrative Procedure. The courts of general jurisdiction should be freed from this.
And everything we've talked about is entirely achievable. So much has already been done, so much has been thought through. Implementing all of this is, of course, a huge undertaking. Because, along with everything else, we'll also have to repeal a huge number of regulations. Our legislation has grown to incredible proportions, and half of it is not based on the rule of law. That is, it doesn't contain the requirements that apply to legal laws and a rule-of-law state. It's a huge cesspool of excessive government regulation that prevents normal people from living and breathing. But it's a achievable task: painstaking, vile—but entirely achievable.
Regarding the media and the oversight functions of civil society—Rogov has a bit to say about this, but this section needs to be greatly expanded: rules for creating media outlets, a strict ban on censorship, and the development of journalistic ethics. The media are, after all, the fourth estate. And it's crucial that this real oversight exists. Again, there's a lot of groundwork to be laid here, because, fortunately, the 1991 law on the media remained practically unamended until the war. This unique law allowed for the development of a generation of independent journalists.
You say a large number of regulations will need to be repealed. I understand that a lot of changes will need to be made to the Criminal Code as well?
"The Criminal Code is easier to clean up. Any code is easier to clean up, really, because it's a one-time process. For example, it can be stripped of all its layers, starting in 2020, with a single document. Small departmental amendments to sectoral laws are more difficult. But that's also possible—a team of specialists simply sits down to work on each major law, or a group of laws in a single area, and, in theory, they'll sort it out pretty quickly. Moreover, as they clean it up, more stuff comes to light and gets further cleaned up. But excessive government regulation needs to be eliminated. It's excessive. No government can function properly with excessive regulation."
In this regard, I'd like to ask a question I've asked others—about law enforcement. It's no secret that local authorities—both government and law enforcement agencies—can be effectively captured and corrupted by local elites, or not even by local elites, but by mafiosi, as in the case of the Tsapkov gang. They will then run the show and enforce the law as they see fit. And if a region or the center tries to intervene, they'll start screaming that local rights are being infringed. What can be done about this?
"Well, first of all, there's the prosecutor's office. And secondly, at the local level, if we introduce proper elections, there will be fewer such cases. It's very close to the ground, after all; people there understand things faster and know their own people better. So, they might make a few mistakes and give power to someone inappropriate—they'll correct them at the next election. Elections, accountability, oversight. You see, when you live in your own rural district, you have a much better view of what's going on there."
Speaking of accountability, I've been around a long time and remember how, after the first State Duma elections, people suddenly began expressing dissatisfaction with certain deputies. It turned out that recalling a deputy if voters believed they had deceived them and were doing something wrong was far more difficult than electing them, and frankly, impossible. Moreover, as far as I remember, there were subsequent amendments that practically eliminated this possibility altogether.
"I'm categorically against recall. Absolutely. A recall—like the kind we had in the USSR—and we've talked about this, it's completely archaic. A deputy should, on the contrary, have immunity, not be held accountable for their statements while serving as a deputy. Elected a jerk? Well, sorry, you'll have a miserable tenure. But at least you'll know who to elect or not elect next time."
Democratic culture is also the ability to choose. It's the ability to recognize a populist or a scoundrel. So what can you do? That's why I'm against recall. That's the Soviet institution of recall—and it practically doesn't exist anywhere else in the world.
How long will the transition period last?
Last question. You say the transition period could be kept fairly short. Some things won't happen so quickly, but the bulk of the legislation could be amended fairly quickly. How long does "quickly" mean? A year, two, five?
"Our transition period will be unique. Of course, it will take much longer to accomplish everything. For us, the transition period means holding elections to a proper parliament, and for that we need new party legislation, so that we can then improve the entire system. But this needs to be done within a maximum of one year. Remember how in 1917, in the nine months between the February Revolution and the Bolshevik coup, they didn't have time to adopt a constitution? And—"those temporary ones, get out, your time is up." Therefore, the transition period should be as short as possible—say, six months. And that's precisely why I believe we must prepare a portfolio for this transition period today. Later, if they do take place, there will be more or less successful parliamentary elections.
Therefore, the points Rogov focuses on are truly very important. But first, we need to form a proper parliament, otherwise everything will be illegitimate. There are, of course, proposals, and they're coming from various quarters, that we should establish some kind of dictatorship. An emergency rule. I think that if one dictatorship gives way to another, the dictatorship will always retain its power. It would be better, of course, not to do that.
