Symposium: Recent and Potential Future Constitutional Developments in Russia

Elena Kremyanskaya

MGIMO-University, Moscow

Currently Russia is facing quite a few challenges, flowing not only from the history of the country but also from recent constitutional developments with the country as well as from developments in constitutional law practice worldwide. In this piece, I try to point out several of these challenges which may impact on the future of the country. Some of the developments discussed relate to recently adopted legislation, while others relate to doctrinal discussions.

The Future of the Russian Constitution

At the end of 2018, the Russian Constitution, adopted in 1993, celebrated its 25 year jubilee. This anniversary has given rise to several discussions related to the future of the Russian Constitution, areas for improvement and its place in modern constitutionalism.

Among those who participated in the discussions were well-known scientists and practitioners. During its twenty-five years of existence, the Russian Constitution has not been frequently amended. This was deliberate, as the government saw it as a way of ensuring the- stability of society. The few amendments that have been enacted related to increases in the length of the term served by the President and by members of the State Duma (the lower chamber of the Russian Parliament); the introduction of a new form of control by the Legislature over the Executive; and, in 2014, some judicial reform. The judicial reform package included the amalgamation of two high courts – the Supreme Court of the Russian Federation and the High Arbitration Court – with the duties of both transferred to the reconstituted Supreme Court.

When discussing the future of the Russian Constitution, many reputed constitutionalists focus their attention on the weaknesses of this Basic Law. In particular, the Head of the Russian Constitutional Court Valery Zorkin has stressed, in his speeches and in articles he has written that these weaknesses include the lack of a proper balance within the system of checks and balances; a bias in favor of the executive branch of government; a lack of clarity in the distribution of powers between the President and the Executive; and a lack of clarity with respect to the status of the presidential administration and the powers of the Prosecutor's office. According to him, the division of competencies and powers between the Federation and its subnational units is problematic, so much so that it would be advisable to amend this aspect of the Constitution.

Despite the fact that the list of weaknesses is quite long, general opinion today is that there is no need to adopt a new Constitution since these weaknesses can be corrected through piecemeal changes to the existing Constitution. For example, Valery Zorkin supports the view that the concept of a “living constitution” can be applied in Russia, and that this might assist with bringing change to some of the more problematic provisions of the Constitutional. On the other hand, we might argue with this idea that Russian law can’t be developed by judicial precedent, given that Russia is a civil law and not a common law jurisdiction.

The dominant view tends to be that substantial changes to the Russian Constitution and even the adoption of a new Constitution are dangerous since the Constitution performs important social and integrative functions. At the same time, a new concept of constitutional identity based on the historical, cultural and geopolitical features of Russia is being developed. I will deal in more detail with this concept in the next section.

Constitutional identity matters

One of the specific subjects for discussion related to constitutional development, is constitutional identity – a relatively new topic in Russia. There is currently an active exchange of opinions regarding the role of constitutional identity and its influence on constitutional development. Most prominent Russian authors, such as K. Karpenko and A. Ispolinov take the view that constitutional identity is about ensuring constitutional stability and democracy. V. Zorkin in his turn emphasizes that constitutional identity is related to a feeling of belonging – belonging, that is, to a united and multiethnic community with a common destiny in their own land – as stated in the Preamble to the Russian Constitution. The process of globalization leads to significant developments and shifts in the world order, it creates risks and some already quite obvious costs, in various spheres of human life – from the economy and social life to from politics and culture – in all regions of the world.

Constitutional identity has been raised in relation to the question of the legal force, in Russia, of the decisions of international courts. Of particular concern is determining whether decisions of the European Court of Human Rights ought to be applied in Russia in case they are contradictory to the Russian Constitution and when the constitutional identity principle may influence the application of those decisions. The constitutional identity principle was first used by the Constitutional Court of the Russian Federation in the case of “Anchugov and Gladkov v. Russia”. The ECtHR had found that article 32 of the Russian Constitution, which prohibits participation in elections by persons detained in prisons, does not comply with the European Convention on the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court found however, that Russian constitutional law doctrine is based on the presumption that the written constitution is the quintessence of the constitutional identity of a nation. Thus, in the case of any contradiction between the Constitution and a decision of an international court, the former prevails, and the Constitutional Court of Russia has a  right to refuse to implement the international court’s decision on the basis of this contradiction.  

It seems the doctrine of constitutional identity therefore serves in Russia as a way of distinguishing between acceptable and unacceptable changes to the internal constitutional order and principles, but still it is in the process of further development.

Strengthening Presidential Control over Governors

Among the Presidential acts of the first half of 2019, is Presidential Decree #193. Dated 25 April 2019. This decree ostensibly relates to “…the performance of the highest officials (heads of the highest executive bodies of state power) of the constituent entities of the Russian Federation and the activities of the executive authorities of the constituent entities of the Russian Federation”.

Most of the Russian governors, in 85 Russian subnational units (or, regions), are elected, with some exceptions, for example in Caucasian republics, where the Head of the subnational unit is nominated by the President and elected by the local Parliament. Governors form part of the executive branch, at the regional level, of government. The new Presidential Decree however, introduces centralized control over the Governors, in accordance with a legally defined list of criteria. This signifies a move towards the centralization of the federation in Russia, introducing more presidential control over the regional executive branch of power. The suggested criteria are quite intriguing. For example, the activity of a governor will be evaluated on the basis of the following criteria: the level of trust  in the governmental authorities in this subnational unit (that is, the President of the Russian Federation and certain other senior officials, including the governor), which can be determined through elections or on the basis of statistical information; the number of people employed in small and medium sized businesses; the level of labor productivity; the level of the real, average, monthly wage; life expectancy at birth; natural population growth; the level of housing affordability; the quality of the environment; the level of education; etcetera.  

Methods are still being developed for the identification and determination of relevant figures and standards for these criteria. Once the decree starts being implemented however, it is likely we will see control by the President over the regional leaders of the executive branch of government intensified, and non-conformity with the stipulated criteria used as a reason for the dismissal of regional leaders by the President of Russia.

Elena Kremyanskaya is an Associate Professor, Chair of Constitutional Law at MGIMO-University, Moscow.

Suggested Citation: Elena Kremyanskaya, ‘Recent and Potential Future Constitutional Developments in Russia’ IACL-AIDC Blog (10 July 2019) <https://blog-iacl-aidc.org/2019globrev/2019/7/9/recent-and-potential-future-constitutional-developments-in-russia>