Panel I: The Separation of Powers in Comparative Perspective: Germany, Brazil, and the United States.
Chair: Sonya Michel, Director, U.S. Studies, Woodrow Wilson Center
Louis Fisher, Constitutional Law Specialist, Law Library, Library of Congress
Fernando Limongi, Professor of Political Science, University of São Paulo
Jeffrey Anderson, Graf Goltz Professor & Director of the BMW Center for German and European Studies, Georgetown University
"We Americans tend to take the separation of powers for granted," said Sonya Michel, Director of U.S. Studies at the Woodrow Wilson Center, at the opening of a 18 May 2010 conference on the comparative examination of separation of powers in the United States, Latin America, Europe, and Russia. "Only when we view the structure of the U.S. government in comparative and historical perspective are we fully able to grasp its significance, begin to understand its workings in all of their complexities, and assess both the strength and weaknesses of how thing are organized." With this statement, Michel introduced the six panelists who each spoke about the constitutional basis and practical applications of separation of powers in their respective countries.
Louis Fisher, Constitutional Law Specialist, Law Library, Library of Congress, embedded his remarks on constitutional law in a historic analysis, saying that current interpreattaion should be compared to what the framers of the constitution had in mind.
As such, Fisher explained that the American framers rejected a pure separation of powers model; rather, the central value of government was its system of checks and balances. Although the branches each had some exclusive powers, the overall emphasis was on the "overlapping of powers and forcing collaboration and joint decision-making." Today, most people consider the Supreme Court to have the last word on the Constitution, but Fisher pointed out that this was never the intention of the framers, nor do any past Supreme Court cases support this notion.
Fisher added that the framers actually intended for only one branch of government, Congress, to have the power to wage war on another country. This notion has been eroded by previous presidents who have sought authorization from international organizations such as the UN Security Council and NATO – "a procedure that flatly violates the Constitution," according to Fisher. "The great danger today is when presidents claim that they can act beyond their express, implied, and emergency powers and invoke ‘inherent' powers that are not subject to checks by other branches," he said. Some empirical examples include Truman's attempt to seize steel mills in 1952 to pay for the Korean war, Nixon's claim of "inherent" power to spy on U.S. citizens without warrant, and President Bush's attempt to create military commissions and hold detainees indefinitely at Guantanamo Bay. All of these were struck down by the Supreme Court or Congress.
Fernando Limongi, Professor of Political Science, University of São Paulo, provided an analysis of rule of law in the Brazilian experience. He argued that the characteristics of the decision-making process, as opposed to the system of government and electoral laws, are the key variables in explaining variation in government performance and party behavior. The legislative power of the Executive is the primary explanatory variable, for it takes precedence over the form of government and electoral laws. Limongi used two case studies of presidential democracy in Brazil: the 1946-1964 and the post-1988 periods.
"The differences between these two democratic experiences could not be greater," said Limongi, who credited them to the concentration of agenda powers in the hands of the executive and party leaders. Agenda setting mechanisms have a clear effect on the functioning of the Brazilian presidential regime. Government efficiency – measured as presidential success and policy dominance on the nature of the legislation – greatly increased with the centralization of the decision-making process after 1988. In the present period, the approval of the presidential legislative agenda is based upon systematic partisan support in the legislature. Party cohesion has increased considerably from the first democratic experience to the present one despite the presence of the same electoral laws. Limongi argued that therefore, the alterations in the decision-making process and the concentration of agenda powers in the hands of the chief executive and party leaders explain the change in observed patterns.
Jeffrey Anderson, Graf Goltz Professor and Director of the BMW Center for German and European Studies, Georgetown University, discussed the classic parliamentary fusion of the executive and legislative system in Germany. Anderson explained how the lessons of the Weimar republic affected the drafting of the new Basic Law in 1949, which was designed to prevent a concentration of executive power like that in the Nazi period. However, because the dispersion and polarization of some 20-30 political parties had destabilized the center in the 1930s, the new Basic Law also established higher barriers for proportional representation. With the new laws, federalism was born; In Germany, power is distributed horizontally among the different Länder. Each Länd has its own written constitution and is responsible for implementing federal policy, a position which allows them to fine-tune federal decisions at the state level. The downsides of federalism include burdensome decision-making and legislative processes, and increased difficulty in consensus-making and coalition building.
Panel II: Separation of Powers in Russia and Ukraine
Chair: William Pomeranz, Deputy Director, Kennan Institute, Woodrow Wilson Center
Oleg Rumyantsev, President, Foundation for Constitutional Reforms
Oleksandr Zadorozhnii, Professor of Public International Law, Institute of International Relations, Tara Shevchenko National University of Kyiv
Maria Popova, Assistant Professor of Political Science, McGill University
Oleg Rumyantsev, currently the President at the Foundation for Constitutional Reforms, served in the Russian Parliament from 1990-1993 and was a legal advisor to the State Duma Committee on Legislation from 1994-1996. In those years, he explained, the drafters of the constitution looked toward the French model, and were inspired by the "civic movement of ideas" that came from the populace. Rumyanstev laments the civilizational shift that has taken place in the past decade; legislators now look towards the presidential monarchy model of Kazakhstan as legal inspiration, and the executive branch has asserted an increasing amount of power over the other branches. Rather than the healthy tug of war that existed during Yeltsin's tenure between the executive and legislative, the Duma now is almost always in unanimous support with the President.
Contrary to the burst of passionate reform in the 1990s, Russia is currently in what Rumyantsev called a "stabilization phase," whereby the authorities control any types of civil movements or initiatives. The Constitutional Court is partly to blame for this, said Rumyanstev, who cited examples of the court continually allowing the president and executive to assume more power. "Unfortunately, the court has lost its obligations to protect the constitutional order."
Oleksandr Zadorozhnii, Professor of Public International Law, Institute of International Relations, Tara Shevchenko National University of Kyiv, served as a member of the Ukrainain parliament from 1998-2006. During that time, he was a member of the Foreign Affairs and Legal Policy Committee and helped draft over 300 laws. He was also the advisor to the Prime Minister of Ukraine from 2008-2010. Zadorozhnii began by saying that a belief in the rule of law was strong among Ukrainian constitutional makers. However, a perfect balance of power is not desirable, since "the state should always be moving in some direction", i.e. in the direction of the overriding national interest. In the U.S. and Germany, this is the responsibility of the executive branch and the parliament, respectively. In Ukraine however, the president exercises a great deal of power, and thus "the question of separation of powers in Ukraine can be reduced to containing the executive," said Zadorozhnii. At the same time, politics matters, for when the executive and legislative are controlled by a single political power, even the perfect functioning of separation of powers will not prevent a silencing of parliamentary opposition.
Maria Popova, Assistant Professor of Political Science, McGill University, presented her research on the separation of powers between the political and judicial branches in Russia and Ukraine within the past twenty years. She investigated how insulated the judiciaries are in each of these countries, and whether separation of power on paper translates into real decisional independence for judges. On paper, Russia and Ukraine have both adopted extensive judicial reforms, including life tenure for judges and judicial control over the drafting and administration of its budget. However, "informal practices reduce the meaningfulness of these institutional reforms," said Popova, citing examples such as ex-parte communication between judges and politicians or parties to the case; deference of lower court judges to higher court decisions even when they are wrong; and judges' consideration of court administrators as their government-linked superiors rather than their assistants.
Popova conducted her research on the rule of law by looking at routine non-constitutional cases that judges in Ukraine and Russia deal with every day. In particular, she examined the adjudication of over 150 electoral registration disputes stemming from the 2002 Rada election and 2003 Duma election. In Russia, there was no statistically significant difference in the probability of success for defendants who were pro-government versus those in the opposition. In Ukraine however, trial outcomes skewed drastically in favor of pro-government candidates. Popova explained that the results did not indicate that the separation of power is better enforced in Russia; rather, the Kremlin's power is secure enough not to need the courts as frequent instruments in a political fight with opponents. "On the other hand, continued vibrant political competition in Ukraine post-2005 has meant that the courts are as important as ever as instruments for achieving political goals," continued Popova, "and the Ukrainian judiciary continues to be a battleground for political enemies and judges."
By Larissa Eltsefon
Blair Ruble, Director, Kennan Institute