2020 Constitutional Amendments in Russia: A Constitutional Update?

Sergei Belov

St. Petersburg State University

The Russian Constitution was adopted in 1993 as part of the democratic reforms implemented after the abolition of the Soviet system. The new constitution aimed at transplanting standards and principles of Western constitutionalism into the Russian system of government. The foundations of the constitutional system and the bill of rights are usually supposed to meet the standards of western-type democratic state (though with some rudiments of Soviet constitutions), while the system of government established by the Constitution was labeled as “presidential”. The President keeps the position of the head of the state, standing beyond all branches of government, at the same time appointing and controlling the Cabinet.

Leaving minor changes aside, since its adoption the Constitution has been amended twice: in 2008 and in 2014. The 2008 amendments extended the presidential term-limits from 4 to 6 years, as well as the term of representatives of the lower chamber of federal parliament (State Duma) from 4 to 5 years; it also obliged the Government to present an annual report to parliament. The 2014 amendments concerned the structure of the judiciary: they abolished the High Court of Arbitration (the highest instance in the system of state commercial courts) and transferred its final appeal jurisdiction to the Supreme Court. Although portrayed as just an “update” of the constitution, because of their scope and breadth, the 2020 constitutional amendments were much more than that. In this post I describe their scope and discuss some of the objections raised by critics.

In October 2018, a debate about the need to amend the Constitution sparked once again in the public sphere. In a piece published in the official government newspaper (Rossiiskaia gazeta), the Chief Justice of the Russian Constitutional Court, Valerii Zorkin, referred to some drawbacks in the Constitution and the need to correct them. According to Zorkin, the system of government was inappropriately imbalanced in favor of the Executive, the distribution of powers between the Government and the President was not clear, as well as the position of the local self-government (regarding its independence from the state authorities). Zorkin advocated for “goal-directed and separate” (tochechnye) constitutional amendments. That same year, the Prime-Minister Dmitrii Medvedev referred to the need for amending the Constitution, and several times throughout 2019 the Speaker of State Duma, Vyacheslav Volodin, made statements in that sense as well. Volodin suggested expanding the powers of State Duma to form and to control the Government beyond giving consent to the President to appoint the head of the Cabinet.

All these commentaries did not have any legal consequences. However, things changed on 15 January 2020. In the annual Presidential Message to the federal parliament, the President proclaimed the need to amend the Constitution in the following 7 points.

First – the international law and decisions of international organizations should not have priority over the Russian Constitution and could be enforced in Russia if they do not contradict the Russian Constitution. This means that the Russian authorities (namely the Constitutional Court) should decide if Russia will execute international courts judgements or refused to do this.

Second – the state officials have to meet a number of requirements and limitations– namely, not to have any residence permit or citizenship in foreign states. Within this point, Vladimir Putin pronounced a quite ambiguous and enigmatic phrase: ‘I know that people are discussing the constitutional provision under which one person cannot hold the post of the President of the Russian Federation for more than two consecutive terms. I do not regard this as a matter of principle, but I nevertheless support and share this view’. Later this point became the most debated issue.

Third – the new principle of unity of public government should appear in the Constitution unifying the local self-government and the state instead of the divide between these two. In the same point Putin stated a proposal whereby the Constitution should guarantee the minimum wage not less than the bare subsistence as the social security measure.

Fourth – referring to the need to strengthen the role of regional governors, the President suggested the inclusion of the State Council (a deliberating organ mostly formed by the regional governors) in the Constitutional text.

Fifth – the State Duma should have the powers not to consent, but to appoint the Prime-Minister and all members of the Cabinet, though “Russia must preserve the position of presidential republic”, the President should keep the power to define the goals of the government’s policies and to remove all members of the Government.

Sixth – the President should appoint heads of the security agencies after consultations with the Upper Chamber (Council of Federation).

Seventh – the federal parliament should have the power to dismiss, on the proposal from the President, Constitutional and Supreme Court judges in the event of misconduct that defames the judge’s honor and dignity. The Constitutional Court, which had the powers of only consecutive constitutional review, must get the power to review (at the President’s request) the constitutionality of legislation adopted by the Federal Assembly before they are signed by the head of state.

The justification of these amendments focused on portraying them as an update or a “modernization” of the Constitution. The Russian legal culture strongly favors updating legal texts through amendments rather than judicial interpretation. Russian lawyers and the public prefer certainty of regulation through amending the text of a legal act, i.e. through “constitutional changes” (Verfassungsänderung as it was classified by Georg Jellinek) rather than its development through interpretations or “constitutional transformation” (Verfassungswandlung under Jellinek). This approach presumes the need to include substantive social changes in the constitutional text. Therefore, according to this view, since 1993 both the Russian society, its political system, social priorities and values seemed to have evolved, and this evolution needed to be reflected in the constitution. This “modernization” in the Russian context meant a search of specific present Russian social standards ideas and principles, most of which are conservative. Russia – at least in the official political rhetoric – tried to take a place of keeper of traditional, orthodox values – e.g. traditional family, concepts of social solidarity and responsibility instead of individualism and liberalism.

For many lawyers and common people, amending the Constitution is a question of certainty: a legal provision will only be clear if explicitly expressed in the text, but not in interpretative sources like judicial decisions. The Socialist tradition required to revise the constitution on every “stage of social development”. In the Soviet time this led to the adoption of new constitutions in every two-four decades (1918, 1936, 1977). The amendments of 2020, however, did not entail the adoption of a new Constitution: many officials repeated the thesis of Vladimir Putin, that the fundamental principles, ideas and values were kept untouched, while the amendments were just “updating” the constitution.

Opposition legal experts criticized the idea of formal constitutional amendments, insisting that most of them are superfluous. Those amendments which reflect the developments in legislation, could stay at the legislation level. Values, declarations and policies should not appear in legal documents, especially in the Constitution. In their view, all necessary regulation could be extracted from the Constitution through interpretation.

The common objective of the proposed amendments could hardly be found. The seven positions declared by the President in January later translated into more than thirty amendments, from social security policy to the federal structure, the form of government, the design of the constitutional review and the judiciary.

The Federal law regulating the procedure to amend the Constitution requires constitutional amendment bills to be limited to one particular issue (Art 2(2)). According to the critics, the proposed amendments concerned too many different subject matters and needed to be split into several bills, discussed and adopted separately. Some of the issues included in the amendment proposals entailed revisions of the principles and values of the Constitution, other established social guarantees, while others regulated the organization of public power. Discussing and voting all these changes altogether was not a fair and proper way for their adoption, as those who support social guarantees but opposed changes in the political system would be put in a dilemma.

The reply to this critic was not obvious. The only idea in support of considering all the amendment proposals together was the substantial changes occurred in the Russian society and politics since 1993, mentioned above. Supporters considered that for many issues today the social ideals and values differ from what were the social standards and mentality 30 years ago. In some issues, they also considered that the amendments would incorporate contemporary legislation into the Constitution, also arguing that the new regulations are to be reflected there.

In the subsequent posts, I will try to focus on both the procedural and substantive details of these amendments, which seem to be the most interesting from both theoretical and practical points of view, which raised debates both among professional lawyers and in the society.

Sergei Belov is Associate Professor of Constitutional Law, Chair of Constitutional Law Department, and Dean of the Law Faculty, St. Petersburg State University, Russia.

Suggested Citation: Sergei Belov, ‘2020 Constitutional Amendments in Russia: A Constitutional Update?’ IACL-AIDC Blog (30 March 2021) https://blog-iacl-aidc.org/new-blog-1/2021/3/30-constitutional-amendments-in-russia.