The Ashes of Constitutionalism: Failures of the Recent Ad hoc Review of Russian Constitutional Amendments

Tatiana Khramova

& Alexandra Troitskaya

National Research University Higher School of Economics, Moscow

Moscow Lomonosov State University

The Russian Constitution has a tiered amendment procedure. Chapters 3-8 (on the federal structure, state bodies and local self-government) can be amended by the derived constituent power – two-thirds of the State Duma (lower chamber of the Parliament), three-quarters of the Council of Federation (upper chamber), and two-thirds of regional parliaments. Changing the fundamental provisions, listed in Chapters 1, 2 and 9, on the other hand, is only possible via the original constituent power. To alter the fundamental clauses, therefore, a new constitution has to be adopted by a special constituent assembly that may put it to a referendum.

Prescribing different amendment rules for different parts of the Constitution was meant to guarantee the state’s commitment to the core constitutional values embedded in Chapters 1 and 2. The Russian Constitutional Court (‘the RCC’ or ‘the Court’) held in 2014 that amendments to Chapters 3-8 may not violate Chapters 1, 2 or 9, either in terms of procedure or substance (at the time, however, the RCC was not vested with the power to conduct such a review).

Amendment Rush: How to Change a Constitution in Two Months

In January 2020, the current President, Vladimir Putin, initiated major constitutional reforms, framed as amendments to Chapters 3-8. In reality, however, many of the amendments raised numerous concerns regarding their compatibility with the core values of the Russian constitutional system, contained in Chapters 1 and 2. The proposed changes were eagerly adopted by both chambers of the national Parliament, in which the ruling United Russia party holds a constitutional majority. Also, in the twinkling of an eye all the regional parliaments ratified the amendments. The President then referred the Bill to the RCC, which has a duty to review constitutional amendments to ensure they comply with Chapters 1, 2 and 9.

On 16 March 2020, the RCC delivered its judgment. The Court issued its ruling, in which it considered over 50 pages of amendments, just two days after the President had referred the Bill to it. In a 52 page judgment (Zakliuchenie), the RCC declared all the amendments constitutional.

In this post, we consider the three most problematic of those amendments. For each of the relevant provisions, we provide a summary of the Court’s findings and a comment on the rather unconvincing arguments it put forward in support of those findings.

“Zeroing out” Presidential Terms

Amendment: The most well-known amendment is the one that “resets” presidential term-counting for prior and current Russian presidents. It thus allows Vladimir Putin to run for the presidency again in 2024 and 2030. This amendment was introduced by a Soviet astronaut, Valentina Tereshkova, during the second reading of the Bill in the State Duma. Ms Tereshkova claimed that, in doing so, she was “simply following the request of ordinary people”. William Partlett has noted some of the constitutional defects of this provision in a previous IACL-AIDC Blog post.

In addition to objections that stem from the principles of republican government, the rule of law and separation of powers, the provision also clearly contradicts the RCC’s own decision of 5 November 1998 No 134-О. In that case, the Court explicitly stated that the constitutional limit to two consequential presidential terms, provided for in Article 81.3 of the Constitution (which also applies to terms served under the previous Constitution), may not be exceeded.

Judgment: In its recent judgment, the Court identified at least two notable differences between the circumstances of the seemingly comparable cases of 1998 and 2020. First, Article 81.3 had been modified since the 1998 decision. The limitation on the number of terms had become more stringent – the two-term limitation is now absolute while previously the Constitution allowed the candidate to run for a third, fourth, etc. term, as long as no more than two of them were served consecutively. Further, the amendments intentionally exclude the current and former presidents from the “new” limitation, while in 1998, there was no similar exemption. Lastly, the current exemption aims to serve as a transitional provision, that would respect the right of the people to vote for the worthiest candidate in the next elections.

Second, the findings of the 1998 decision are not conclusive for the current judgment, because the 1998 decision did not link the issue of “term-counting” to the core principles of the Russian constitutional order, and thus did not create a general rule.

Comment: The problem with the RCC’s reasoning is that it completely disregards an essential, underlying, purpose of the Russian Constitution. A core function of the Constitution is that it must serve as a constraint on the concentration of power in the hands of one person and prohibit public officials from using the law to unreasonably expand their authority to infinitely stay in office. In balancing popular sovereignty against the rule of law and a republican form of government, the RCC supposedly prioritized the will of the people, but actually gave effect to the will of the “constitutional legislator”. The Court thus failed to perform its primary function as a defender of the constitutional values and norms contained in Chapters 1 and 2 of the Constitution.

Undermining Judicial Independence and Weakening the Constitutional Court

Amendment: The Law gives the President the constitutional power to submit to the Council of Federation a motion to remove from office judges of high courts (including the Constitutional and Supreme courts) if they have defamed the honor and dignity of a judge and in other cases indicated in federal constitutional law.

Further, the amendment reduces the number of RCC judges from 19 to 11. In addition, it grants the President the authority to initiate the preliminary constitutional review of legislation. And, it also imposes a procedural restriction (the exhaustion of judicial remedies) on citizens’ right to bring constitutional complaints to the RCC.

Judgment: The Court held that these provisions do not violate the constitutional guarantee of the separation of powers or the constitutional nature of the judiciary in a law-bound state (Rechtsstaat, pravovoe gosudarstvo). The RCC approved the new procedure for the termination of judges, because it found that the provision requires coordination between the President and the Parliament, and does not allow for unmotivated and unreasonable dismissal.

Regarding the composition and powers of the RCC, the Court deferred to the "discretion of the constitutional legislator". In the Court’s view, additional admissibility criteria for citizens’ complaints enhances the effectiveness of review and ensures better coordination within the judicial system.

Comment: We believe that these amendments seriously undermine judicial independence. The involvement of both the President and the Council of Federation in the termination of judges does not eliminate the risk that a judge could be removed on dubious grounds. The amendments lack sufficient guarantees that the termination of judicial tenure will only be allowed on legitimate grounds and in terms of fair procedure. In other constitutional states, the removal of judges is ordinarily either performed by the judicial community itself or requires a super-majority in the legislative branch on constitutionally-mandated grounds that are hard to establish. These provisions, however, lack any such institutional safeguards.

There is no universal agreement on the ideal number of judges on a constitutional court. However, a sudden and unreasonable reduction in the total number of judges on the bench is impermissible, especially if accompanied by the imposition of additional barriers on filing individual complaints. The new preliminary control procedures also raise concerns, especially about whether the ex ante review of legislation precludes it from being reviewed ex post.

Ambiguous Identity

Amendment: Vague slogans, reflecting features of national identity and manifestations of Russian sovereignty, were added to Chapter 3 (on the “Federal Structure” of the state). The changes include a prohibition on the dispossession of any Russian territory, as well as calls for such dispossession. They further mandate the honouring of the memory of the country’s defenders and the protection of historical truth, as well as the nurturing of patriotism, civic engagement and respect for elders. A declaration of the superiority of the Russian language as the language of the “state-forming” people is also included, as is a proclamation that Russia is a legal successor of the USSR within its territory. Besides this set of aspirational amendments, there are numerous others, including ones prescribing faith in God as handed down by ancestors, and the protection of marriage as a union between a man and a woman.

Judgment: The Court did not see any contradiction between these provisions and fundamental constitutional values, such as the guarantees that Russia embrace ideological diversity or is a secular state. Instead, it found these statements to be “non-political, non-partisan and non-denominational [in] character”. The RCC stressed that the new provisions do not establish a state or a mandatory ideology and that they do not alter the principles of pluralistic democracy and secular statehood, or introduce inadmissible restrictions on rights and freedoms.

Comment: Currently, the Preamble to the Constitution contains its aspirational provisions. While it is, of course, permissible for Russia to alter its constitutional values, the only way to do that legitimately is by way of adoption of a new constitution which requires the expression of the will of the original constituent power. Instead, these changes were incorporated into Chapter 3 (on the distribution of power between the federal and regional authorities and the constitutional status of the subjects of Federation). By making these changes to the aspirational vision of the Constitution in Chapter 3 instead of the Preamble, the legislature has destroyed not only the Constitution’s hierarchy of norms but also its internal logic.

Conclusion

In the end, the RCC managed to perform, successfully, the function it was entrusted with, that is to legitimize, justify and lend credibility to the top-down project of constitutional amendment. In doing so, the Court failed to defend values contained in Chapters 1, 2 and 9 of the Constitution, risking its professional reputation and giving up its independence. Unfortunately, the RCC was aware of and willing to make this sacrifice.

Tatiana Khramova is an Associate Professor at the National Research University Higher School of Economics in Moscow, Russia, and Alexandra Troitskaya is an Associate Professor at the Moscow Lomonosov State University in Moscow, Russia.

Suggested citation: Tatiana Khramova and Alexandra Troitskaya ‘The Ashes of Constitutionalism: Failures of the Recent ad hoc Review of Russian Constitutional Amendments’ IACL-AIDC Blog (31 March 2020) https://blog-iacl-aidc.org/2020-posts/2020/3/31/the-ashes-of-constitutionalism-failures-of-the-recent-ad-hoc-review-of-russian-constitutional-amendments