The art of constitutional seduction. The 2020 case of Russia

Russian President Vladimir Putin during a videoconference meeting with the working group on drafting proposals for amendments to the Constitution in July. This process was the most extensive intervention into the text of the Russian constitution since its adoption in 1993. Photo: President of Russia website (CC) http://static.kremlin.ru/media/events/photos/big/BOR5mtYIRRCy7Ci6hiiIIkUrYkHLePBl.JPG

Suddenly during the nth term in office, a constitutional restriction preventing you from being president for life starts to bother you. Certainly, you have succeeded in overcoming similar challenges in the past, but the current situation looks different and “Day X” is inevitably getting closer. There are, of course, many scenarios on the table you can implement in advance, but you still hesitate on how to solve this puzzle with the maximum personal benefit. Most likely you understand that such a risky and deceitful proposition would require the immaculate formal procedure to create a halo of legitimacy over it. What are the odds that, instead of developing a constitutional reform as it should be, you will undermine the legitimacy of your reign by creating a controversial and questionable outcome?

We will likely never find out the real motivations why Putin initiated and developed the 2020 constitutional reform in the way that he did. As any true autocrat, he has a right and privilege to act both rationally and non-rationally towards the constitutional system without fear of consequences. Nevertheless, unlike all previous constitutional alterations, this ambitious reform was backed with significant negligence towards the established and previously exercised parameters, which makes the whole venture both unconstitutional and implausible.

The essential content of the 2020 Law on Amendment to the Constitution of the Russian Federation “On Improving the Regulation of Certain Aspects of the Organisation and Functioning of Public Authority”, its legal nature and the technical proceeding of adoption were intentionally ruined with no coherent reason or foreseeable gain. Effective since July 4th 2020, the constitutional amendment lawpartially or completely reviewed 41 current articles of the 1993 Constitution of Russia and inserted five new ones. This effort was the most extensive intervention into the text of the Russian constitution since its adoption. But the most disturbing component of this process was the Russian-wide vote, which took place between June 25th and July 1st 2020, and was the ill-example of imitating democratic referenda practices.

How to seduce public opinion with an unpopular notion? The following legal sleight of hand, which Putin used to develop and implement the 2020 amendment law, could be quite useful if you are seeking more power.

Trick 1: Conceal your intent under a large mix of nonsense

Despite the previously established order in Russian constitutional law, the law on the amendment to the constitution is literally a single constitutional amendment towards one constitutional subject; the 2020 constitutional amendment law, however,is a set of different unrelated amendments designed and titled as one amendment. For example, in 2008, two constitutional amendments on various subject matters (the president’s and parliament’s terms of office and the supervisory authority of the State Duma towards the government) have been simultaneously introduced into the constitution as two separate constitutional amendments, and each amended only two articles.

The 2020 process was completely different. All necessary alterations towards public authority (especially the nullification clause, new powers of the president, the supremacy of national law over the international legal order, and federal structure modification) are cleverly mixed-up with ideological commands on such topics as: God, marriage, children, animals, the Soviet Union, historical truth, the thousand-year history of Russia, patriotism, defenders of the Motherland, the language of a state-forming nation, pension and social security benefit indexation, ecological culture, etc. Such tantalising amendments (some of them, by the way, looking so odd and ironic in the constitution!) are meant to conceal the primary intention of policymakers and to act as a magnet for public attention.

Trick 2: Outshine procedure with populism

Russia’s constitution is very clear on the means of its amending. An amendment shall be adopted by the supermajority in both houses of the Federal Assembly (two-thirds of the State Duma and three-quarters of the Federation Council), and it comes into force after ratification by parliament of no less than two-thirds of federal units of Russia. No additional actions are needed. The 1998 law “On the Procedure of Adoption and Entry into Force of the Amendments to the Constitution of the Russian Federation”, sets the procedural mechanism for adoption and ratification of any constitutional amendment. Four previous constitutional amendments were introduced in the Russian constitution by using this very procedure.

However, in 2020, this process was complicated by engaging the constitutional court and a plebiscite for completion of the amendment process. The 2020 amendment law clearly specified that without the positive conclusion of the constitutional court and a successful people’s vote, the amendment itself will be ineffective. The idea of a people’s vote here looked particularly controversial and populistic. Due to COVID-19, the one-day vote was initially scheduled for April 22nd, then changed to July 1st and extended for seven days (including, June 25-30 for early voters). Even worse, the voting process was designed more like a pseudo-democratic style of voting that was far from a genuine reflection of public opinion.

Trick 3. Use language as a legal weapon

A fascinating language trick was applied which probably eludes non-Russian speakers. The 1993 Constitution of the Russian Federation was adopted by a nationwide vote. This vote is also applicable if a new constitution of Russia would be drafted by the constitutional assembly. A referendum (same term in Russian) is a legal implementation of the nationwide vote, which was established by the constitution and by the 2004 Federal Constitutional Law “On Referendum of the Russian Federation”.

However, the 2020 amendment law invented a new term – the “Russian-wide vote”. Since a Russian-wide vote is not a nationwide vote, the standard referendum procedures do not apply towards this ad hoc performance. The vote was organised under a limited set of controversial rules of the constitutional amendment law. Russia’s central election commission also issued many by-law instructions establishing the technical nuances of the Russian-wide vote sometimes beyond the parameters established by the law mentioned above. And since the 2020 amendment was designed as a single document, the citizens were obliged to vote in the non-referendum for the whole amendment package, not selectively for the separate elements.

Trick 4. Break the constitutional order with the constitution itself

According to Article 135 of the Russian constitution, Chapter One (The Constitutional System Foundations), Chapter Two (Rights and Freedoms of Man and Citizen), and Chapter Nine (Constitutional Amendments and Review of the Constitution) are unamendable. In other words, these chapters may not be revised by the Federal Assembly. Article 16 (2) additionally stresses that no other provision of the constitution may contradict the fundamental principles of the constitutional system of the Russian Federation established by Chapter One. To review these chapters, the constitutional assembly shall be convened (by the way, for 2020, there is no federal constitutional law on this matter yet). The constitutional assembly shall either confirm the current version of the constitution or draft a new one, which shall be adopted by the assembly itself or by nationwide vote.

Yet, the 2020 amendment law has many provisions affecting these matters. For example, the law:

• Requires an adoption procedure, different from the rules of Chapter Nine;
• Foresees the possibility of creating the federal territories – extra-legal units with no mention in Chapter One;
• Secures the prevalence of the national law (i.e. Russia’s Constitution) over international treaties and decisions of international bodies, which contradicts Chapters One and Two;
• Inserts into Chapter Three new basic ideological provisions (instead of Chapter One) and some social regulations affecting human rights (instead of Chapter Two).

Since the amendment law could not amend Chapters One, Two, and Nine, it broke the current constitutional arrangement, creating many collisions within the updated version of the constitution. Rather than adopt a new constitution using a nationwide vote, an unconstitutional procedure was used. According to the amendment law,the constitutional court was obliged to issue a conclusion whether the constitutional amendment contravenes Chapters One, Two and Nine. It was to no surprise that the court overlooked any problematic norms in its 52-page conclusion.

Trick 5. Consider a hyper-speed constitutional procedure

Exploring the time frame of the 2020 constitutional reform, it is impossible to not notice that the amendment was developed in a hurry within an implausible timetable. The amendment was initiated on January 15th when Putin established a working group for preparation of the constitutional amendment draft (75 people included). On January 20th the president submitted the draft to the State Duma. One January 23rd the State Duma adopted the draft in the first reading. Then on March 10th, the State Duma adopted the law in its second reading, a day later in the third reading.

On March 11th the Federation Council adopted the law. The following day, the required number of ratifications by the parliament of the federal units was achieved. By March 13th all of the federal units had ratified the law. On March 14th Putin signed the amendment and issued the inquiry to the constitutional court. Two days later, the court confirmed that the law did not contradict the Russian constitution. By March 17th Putin signed a decree calling for the Russian-wide vote on April 2nd (it was cancelled on March 25th – see above).

The voting eventually took place between June 25th and July 1st. The law went immediately into effect on July 3rd with Putin signing a decree on the official publication of the revised version of the Russian constitution, which was published one day later on July 4th.

The aftermath of the 2020 constitutional reform

Most importantly, both President Putin and former President Medvedev can now each hold the office of president for two additional terms – 12 years in total if no office term change will occur in the future. In fact, Putin will be considered like the late General Secretaries of the Communist Party of the Soviet Union – an immovable leader for life. Even if Putin (unlikely, but still theoretically possible) refuses to be re-elected in the future, this reform opens a wider window of political manoeuvres for him. For example, an honorary but secured retirement or chairing of the State Council.

A short list of some other memorable constitutional alteration that are not listed above, include:

• Any other future President of Russia (except Putin and Medvedev) can hold the office of the President for no more than two terms.
• The President of Russia can dismiss the Head of Government with no need to appoint new ministers and other government staff, and the president can (not the head of government) carry out the general management of the state.
• The president heads the State Council – previously an advisory body, now a public body – and the Security Council – an existing public body headed by the president. Both have uncertain constitutional status, yet large executive discretion;
• The President of Russia appoints up to 30 senators/representatives (up ten per cent from the general number of the upper house) to the Federation Council, including up to seven senators for life.
• A permanent resident of any foreign territory incorporated into the Russian Federation (i.e. by now, a permanent resident of the occupied Crimea and Sevastopol) is allowed to become president.
• A former president becomes a senator for life, unless he or she refuses.
• A former president is granted immunity for life which can only be withdrawn by at least both two-thirds of senators of the Federation Council and two-thirds of the members of the State Duma.
• The number of judges of the constitutional court is reduced from 19 to 11.
• The President of Russia submits to the Federation Council a motion on the termination of authority of judges of the constitutional court, of the supreme court, of the cassation courts, and of the appeal courts.
• Local authorities and bodies of state administration are merged into a unified system of public authority with no explanation of such transformation provided.

In the end, the 2020 constitutional seduction manoeuvre is a fascinating case on how to use a quasi-democratic instrument to prolong the authorities of incumbent political leader of the state with no respect for previous legal practises of even technical issues of national the constitutional system.    

Oleksandr Marusiak is an expert in constitutional law at the Centre of Policy and Legal Reform (Kyiv, Ukraine) and a full member of the Ukrainian Bar Association. He specialises in comparative constitutional law, especially in constitutional design issues of post-Soviet states.

amendments, Constitution, Putin, Russia