Interview with Sergey Shakhray, by Aliya Samigullina: "'Any Constitution Has a Service Life"

 

Sergey Shakhray, one of the author's of Russia's Basic Law, talked to Gazeta.Ru-Kommentariya about the spirit of the Russian Constitution and about how the four-year presidential term came about.

 

Samigullina: Do the amendments submitted by President Medvedev violate the spirit of the Constitution?

 

Shakhray: Any constitution can be annulled or altered and amendments can be made to it. If the amendments are proposed within the framework of the prescribed procedure, in what way is it a violation? The spirit of the Constitution is stipulated in three chapters: the first, "Foundations of the Constitutional Order"; the second, "The Rights and Freedoms of the Individual and Citizen"; and the ninth, "Constitutional Amendments and Revision of the Constitution," which guarantees the stability of the Russian Basic Law. In order not to violate the spirit, a note was included especially saying that these chapters could be changed only by referendum.

 

In the remaining chapters, concerning the organization of the parliament, presidential power, and the work of the government, changes have to be approved by a two-thirds vote of the State Duma and a three-fourths vote of the Federation Council (SF) and then approved by the parliaments of two-thirds of the (Federation) subjects. This is the mechanism for guaranteeing legitimacy.

 

Samigullina: How often can the Constitution be changed?

 

Shakhray: Any constitution, like the human organism, has a service life.

 

Our Constitution is a very laconic, framework document. In it are stipulated several constitutional values and procedures for resolving constitutional conflicts and disputes.

 

Everything else -- constitutional laws, federal laws, and KS (Constitutional Court) decisions -- can be changed, sometimes quite drastically.

 

You and I saw, for example, how the procedure for forming the Federation Council changed. The Constitution does not even have any principles of the right to vote because at the municipal level, in order for minorities to be represented, everything can be decided in a different way.

 

Right now no more than 60% of our Constitution -- and for some sections, no more than 20% -- has been implemented.

 

Samigullina: Doesn't a mechanism that changes most of the chapters of the Russian Constitution violate citizens' rights?

 

Shakhray: No, it doesn't --if the stipulated procedures are followed. That's what observing the spirit of the Constitution means.

 

Samigullina: How fundamental for the Constitution is the issue of term length for the president and parliament?

 

Shakhray: Practice has been quite diverse, and even in the 1990s there was a Constitutional Court decision on the constitution-charters of (Federation) subjects. Some wrote in term lengths for themselves of four years, some seven. Then the KS decided that a normal term is four to five years.

 

Now, if there was a proposal to increase a term to 10 years, that would violate the succession of power and deprive us of the opportunity to reelect it on a regular basis, but five or six years doesn't.

 

Samigullina: When the Constitution was being written, why was a four-year term specifically chosen for the president?

 

Shakhray: Sergey Alekseyev and I suggested five years for the president and four years for the parliament, so that they would be elected in different years. At the time people wanted the president to serve two terms, 10 years, and I was badly beaten up over it.

 

Four years was a compromise among the competing political forces -- the Communists and democrats.

 

Everyone wanted the president to serve as little as possible, and that's how we got the four years. It simply can't be less, after all, nowhere is a president elected for three years. They preside over the EU (European Union) for six months, but those are different structures.

 

Samigullina: So what is the optimal term? Four years or six?

 

Shakhray: The optimal term is five years. Or rather, five to seven.

 

I was personally well acquainted with Francois Mitterrand (the president of France from 1981 to 1995-- Ed. Gazeta.Ru). He served two seven-year terms and neither he nor France suffered.

 

Samigullina: One other amendment submitted by the president requires the government to report annually to the parliament. How much does this proposal correspond to Russia's state order as set in the Constitution?

 

Shakhray: Our model is a presidential-parliamentary republic. The president is not part of the system of executive power, which is headed up by the government, but acts as an arbiter.

 

The amendments to the Constitution do not have to be approved for the government to report to the parliament. All it takes is an order or decree from the president, and the government could be reporting twice a year.

 

In many countries, primarily the Anglo-Saxon system, all it takes is custom. Written into our Constitution is the most important thing: the prime minister cannot occupy his post without parliament's approval. The parliament does not have to approve the candidate submitted for prime minister. Therefore, when they do approve a candidate -- if they do so responsibly -- the deputies can reach a side agreement with the candidate for prime minister or with the president about how the government is going to report.

 

Amendments can be written, of course, but this is superfluous. I think this was proposed for balance.

 

Samigullina: What do you think about this idea and the fact that this control function of the parliament is going to be added to the Constitution?

 

Shakhray: I am hands down in favor of government reports to parliament. But there's no need to change the Constitution for this.

 

The main thing in parliamentary oversight is money. And that is written into the Constitution.

 

No one but the parliament can audit the government's fulfillment of the budget. But this takes brains, painstaking and tedious work, whereas they would like to just keep changing ministers.

 

Yes, if you control the money, then everyone's going to toe the line for you. When we wrote the Constitution, we gave financial control to the parliament entirely -- by 230%. That's more than enough.

 

There are special regulations in the Constitution, in the laws, and in the Budget Code about parliamentary hearings and the government hour. We suggest to the deputies that they hear out the minister, and then the auditor auditing the ministry, and they'll find out about the ministry's financial pranks. The deputies have never once taken advantage of this. That is, they don't want this kind of control but some other kind.

 

Samigullina: You mean all the necessary instruments of control exist as it is?

 

Shakhray: And I list them here. You have to at least read what's stipulated in the Constitution. But we have the following approach: the weather's turned bad and my husband's left me for my neighbor, so why don't we change the Constitution?

 

Samigullina: How well do Medvedev's proposals on a quota for parties that do not surpass the minimum barrier correspond to the spirit of the Constitution?

 

Shakhray: It's a good proposal, so that even 5% -- and that is several million votes -- are not for naught. This can be resolved in various ways. Either lower the minimum to the previous 5% or even 3%. Or else by the means Medvedev proposed.

 

Samigullina: What about only regional and municipal deputies being able to become senators, in the channel of the Basic Law?

 

Shakhray: I continue to believe that the optimal scenario is when a region is represented in the Federal Council by the governor and chairman of the legislative assembly personally.

 

The SF considers only the most important issues and a few stipulated in the Constitution: budget, finances, taxes, war, and peace. That is, given a normal course of affairs, the Federation Council meets twice a month, and possibly even less often. The Federation subject's top man and the chairman of its legislative assembly have plenty of time to come in for these discussions.

 

In addition, this would speak to the fact that the interests of all the regions have been approved at the level of the upper house of parliament. The top men voted in favor of this question, which means that there are no grounds for a decision not to implement it or to implement it badly. Convening right now in the SF are representatives of executive and legislative power, mostly Muscovites, who are solving their problems one way or another.

 

Samigullina: Is an attempt being made right now to return to the originally stipulated mechanism?

 

Shakhray: Or an attempt to shift to direct elections. But if a region gets a governor, whom you and I are now not electing, and next to him is a senator you elected by direct vote, then what guarantees do we have in Russian conditions? At minimum, we have a conflict of interests, diarchy, and opposition. Shifting to direct elections would balance out power in the region.

 

Samigullina: What do you think, how long will it take for the amendments to pass?

 

Shakhray: Two articles require changing a single word each. It's all simple: 'for' or 'against.' Altogether it will take a couple of months if you include confirmation by the subjects' legislative assemblies. If you do the math -- by February. But it may be by the end of the year, too.

 

Samigullina: Do the amendments concern only the next congress of the parliament and the new president?

 

Shakhray: Yes, they apply exclusively to the next parliamentary body and the next presidential term. This can't be revised; the law is not retroactive.

 

Samigullina: After elections are held under the new procedure, will dissatisfied citizens -- and we have them now already -- be able to challenge the amendments in the Constitutional Court?

 

Shakhray: There will be no chance of that whatsoever. The KS has a legal position, and there is the international court. That would be a waste of money.

 

Samigullina: Should they now, for instance, consult with you as the Constitution's author?

 

Shakhray: It makes sense. My experience as an author and lawyer could be utilized. Whether or not this will be done, I don't know.

 

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Source: Gazeta.ru