Russia’s Broken Constitution
(Kennan Institute – wilsoncenter.org/program/kennan-institute – William E. Pomeranz, Deputy Director of the Wilson Center’s Kennan Institute – June 26, 2020)
The Putin constitution is poised to become the law of the land. Although the new coronavirus and the resulting economic recession have put a significant dent in Putin’s popularity, the outcome of the upcoming constitutional plebiscite appears to be a foregone conclusion. Indeed, copies of the revised constitution hit the Moscow bookstores well in advance of the official results of the July 1 voting.
The primary beneficiary is, of course, Vladimir Putin, who can now contemplate another two terms and 16 uninterrupted years in power. In the process, however, he has introduced certain fundamental contradictions within the body of the constitution that severely limit its ability to serve as a statement of founding legal principles. That may not bother Putin, who has always relied on a highly personalized system of rule. Nevertheless, these changes go against the 1993 Russian constitution’s original attempt-however aspirational-to create a more democratic and law-based country.
In reality, Putin’s amendments signify a return to the Soviet practice, where the nation’s highest law was largely ornamental and disconnected from its actual system of governance. Such an observation should not somehow be read as an unqualified endorsement of the 1993 constitution. Boris Yeltsin’s constitution was born out of violence and political exhaustion, ultimately retaining a strong pro-statist orientation that Putin has freely exploited during his two decades in power. Yet for all its faults, it also was the most liberal constitution in Russian history.
The inconsistencies within Putin’s 2020 constitutional amendments derive from a requirement within the original 1993 constitution that its first two chapters-which address the fundamentals of the constitutional system and the rights and freedoms of Russian citizens, respectively-could only be revised through a constitutional convention. Putin evidently had no intention of calling such an assembly. Instead, he crammed more than 200 changes into the subsequent chapters, even though these revisions openly undermined and disagreed with the document’s unamended basic guiding principles.
The conflicts are now numerous and profound. The 1993 constitution designated the multinational people of the Russian Federation as the bearers of sovereignty. An amendment now refers to the Russian language as the language of the “state-forming people,” thereby elevating ethnic Russians in what theoretically had been an equal and multiethnic population. Article 15, part 4 made the generally recognized principles and norms of international law an integral part of Russian law. Now the amendments, however, allow the Constitutional Court to reject any decision of an international court if it contradicts the constitution of the Russian Federation-a clear violation of its responsibilities as a member of the Council of Europe.
The Russian Federation’s nascent division of powers, never strong to begin with, has now been thoroughly compromised by the 2020 amendments. Most notably, at the president’s initiative, any high-ranking federal judge can be removed from office by the Federation Council. Russia’s highest Court further has been dragged into politics; according to the amendments, if the legislature were to overturn a presidential veto, the president could turn to the Constitutional Court for a determination on the law’s underlying constitutionality. The Duma’s ability to appoint the prime minister technically has been enhanced. The government’s independence, however, has been diminished by placing the executive branch-a theoretically autonomous branch of government-under the general leadership of the president.
The list of contradictions goes on. Certain amendments have significantly expanded social rights and given them greater prominence without any corresponding reinforcement of civil rights. Article 12 of the 1993 constitution originally declared that local self-government would be independent, yet according to Putin’s reforms, such local institutions will now be swept up into a unified system of public power, to be defined at a later date. The establishment of a secular state has now been amended to highlight the historical influence of Russia’s ancestors, particularly their belief in God. The 1993 constitution further proclaimed that Russia would have no official ideology, but Putin’s conservative values have now received constitutional approbation, most notably the definition that marriage constitutes the union between a man and a woman.
In sum, the amendments touch on approximately 60 percent of the constitution, leaving behind a more jumbled and disjointed presentation of Russia’s highest law. If there is one remaining constant in Russian constitutional thought, it is the need to uphold national unity and the integrity of the state. This principle led off the Fundamental Laws of 1906 (the “one and indivisible state”), worked its way through the union of “Soviet” peoples under communism, and eventually was incorporated into the 1993 constitution and its “unified system of state power.” Putin’s amendments reinforce this longstanding norm by recognizing the preeminence to the Russian state, as arising from the historical idea of “state unity.” And yet as Russian history suggests, this principle primarily has served as a pretext to preserve the status quo while striking out against dissenting opinions and ethnic minorities alike.
Putin’s constitutional legacy now consists of transforming a flawed but forward-looking document into a defensive one. The contradictions introduced by the amendments further convert the constitution into a façade that will follow the Soviet (and post-Soviet) practice of relying on informal, not formal, rules. Putin’s drop in popularity may well create fresh opportunities for Russia’s divided opposition. The Putin constitution will seek to ensure that these new openings remain permanently closed.
[article also appeared at wilsoncenter.org/blog-post/russias-broken-constitution]