January 10

Russia and the rule of law



In ‘There’s something rotten in the state of Russia,’ Owen Matthews concludes in The Spectator (“There’s something rotten in the state of Russia”  7/1). He says that while President Dimitry Medvedev was supposed to clean up Russia, feudalism, lawlessness and corruption continue.

Mr. Matthews piece centres on the biggest tax fraud in Russian history. Attention was drawn to this when the young tax lawyer Sergei Magnitsky died of pancreatic failure in Moscow’s  Butirskaya prison.  

Working for Hermitage Capital, once the biggest investor on Russia’s stock market, his error was to complain about a $230 million tax refund scam which he believed was the work of corrupt tax officials and police. He had documented the way in which they had used companies stolen from Hermitage during a police raid as vehicles for claiming false tax refunds.

Magnitsky was arrested, and when he refused to give testimony against Hermitage and drop his accusations against the police and tax authorities, Mr Matthews says he was moved to more and more horrible sections of the prison, and ultimately denied the medical treatment which could have saved his life.

His death made the pages of the Moscow business press, but not the national television stations. The president has taken some action, but Owen Matthews doubts this will extend to the real perpetrators of the tax scam, ‘reliably reported by the New Times magazine to be in the upper echelons of the Federal Security Service’s ironically named Economic Crimes Department.’

…the Russian problem…

While the nature of Russian governance has moved on somewhat since the 16th century, and one would hope Soviet times, Matthews says one thing has remained the same.  Post-Soviet Russia is a profoundly feudal society.

“I don’t mean that as a generalised insult denoting ignorance and backwardness,“ he writes. “I mean really feudal, in its most literal sense. Feudalism is the exchange of service for protection. In the absence of functional legal or law enforcement systems, people’s only real protection lies in a network of personal and professional relationships with powerful individuals."

And so it is in Russia today — for every member of society with something, however small, to lose, from a market stall owner to the nation’s top oligarchs. Your freedom from arbitrary arrest, fraudulent expropriation and extortion by bureaucrats is only as good as your connections.”

“Dmitry Medvedev understands this problem all too well. He puts it in different terms, of course, railing against the ‘legal nihilism’ which is rotting Russia from within. But we’re talking about the same thing. It’s precisely because Russia’s legal system is for sale to the highest (or most powerful) bidder, because bureaucrats are above the law and because policemen are not only corrupt but actively criminal that Russians turn to older rhythms of social organisation — to personal, feudal relationships with individuals and institutions that can provide security. Russians buy the protection that the state cannot provide.”

“It’s hard to overstate how serious and corrosive a problem this legal nihilism is — and how fundamentally it stops Russia from becoming a normal, functional society and economy. One recent case shows just how deep the rot goes — and how powerless, and ultimately unwilling, even Medvedev is really to change the system.”


The point is that the rule of law is central to a civilised society. We have known it since 1788 –it came with the Crown, notwithstanding the calumny that the penal colony was a ‘gulag’.

 Just consider one example.  An early civil action brought by convicts against a ship captain for theft was defended on the ground that at common law felons could not sue.  The court required the captain to prove this, which was of course impossible since the records were in England.

 Lord Sydney was determined that the colony be governed by the law. Lord Sydney’s decision reflected very much the views of the first Governor, Captain, later Admiral Arthur Phillip.

He wrote, before leaving England, that in this new “… there will be no slavery and hence no slaves.” 

…overthrow  of the Tsar a disaster….

The first world war and the revolution were a disaster for Russia.   

Oleg Gordievsky, one of the highest-ranking and most valuable KGB defectors, was a Colonel of the KGB, and the bureau’s rezidentura in London, but became disillusioned with the Soviet system. He defected to the United Kingdom in 1985. In a letter to The Independent on July 21, 1998 he wrote:

“Russia under Nicholas II, with all the survivals of feudalism, had opposition political parties, independent trade unions and newspapers, a rather radical parliament and a modern legal system. Its agriculture was on the level of the USA, with industry rapidly approaching the Western European level. [In contrast] in the USSR there was total tyranny, no political liberties and practically no human rights. Its economy was not viable; agriculture was destroyed. The terror against the population reached a scope unprecedented in [human] history. No wonder many Russians look back at Tsarist Russia as a paradise lost.”

The late Tsar was a good man, and capable of learning. By the war, Russia had advanced considerably.   She was cast back by Lenin and Stalin beyond the worst excesses of the most autocratic of his predecessors.

Australians know it would be unwise to change our constitutional system radically. “ If you don’t know Vote No,” was the wise advice from broadcaster Alan Jones.  

The republican model put up in 1999 gave dangerously increased powers to the Prime Minister. “It would have been the only republic in the world where it would have been easier for the Prime Minister to sack the President than his cook.”   The idea of the President being any check and balance against the Prime Minister went out the window with this provision.

Now republicans are agreeing that the model was not so perfect. Professor George Williams agreed recently that the model   had defects.

“The most significant was a mechanism by which the president could be dismissed unilaterally and without reason by the prime minister. Parliament would have been required to approve the dismissal, but could not overturn the decision, nor reinstate the president.” (Time for a new debate on the republic, The Sydney Morning Herald, 2 November 2009)

“If you don’t know, Vote No.” 


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