Four Procedures to Review the Constitution of Russia: or, What is Wrong with the 2020 Constitutional Amendment Process?
Oleksandr Marusiak wrote about fatal procedural flaws of the 2020 constitutional amendment process in Russia.
Inspired by the French constitutional tradition, the 1993 Constitution of the Russian Federation1formally established a democratic semi-presidential federal republic with separated offices of the head of state (the President) and the head of government (the Prime Minister)2. However, this Constitution disproportionally benefits the office of President with the numerous powers and supervisory duties towards all three branches of government, making it the most influential policy-making actor in the country. In addition, Russian constitutional design lacks an effective check and balances mechanism, which, in combination with the political system peculiarities, makes the President capable to install the personalist rule even without any significant constitutional alterations.
Given the fact that the President of Russia enjoys the constitutional amendment power (i.e. the power to initiate a constitutional amendment process, in some cases, to alter Article 65 (1) of the Constitutionwithout the Parliament vote), the general legal construct of the constitutional amendment process in Russia looks quite bizarre. In addition, multiple legal options to review the Constitution, each based on the procedural rules outlined by different instruments with unequal legal force, are the significant feature of the constitutional process in Russia, as well.
Nevertheless, up to 2020, the Russia’s Constitution had not beena subject to permanent dramatic reviewing process. No radical efforts for any national constitutional makeoverhave ever been made. Precisely, minor—while still tantalising—changesdid happen in 2008 and 2014, but they looked nothing like paradigm-shifting constitutional reform.
Usually obsessed with the letter of the law (not rule of law, sadly), political elite in Russia has always been paying considerate attention to technical dimension(including, drafting methodology parameters and other procedural formalities) if any constitutional amendment initiative was to be activated. Such unquestionable order seems to be both rational and desirable, since it only benefits the hybrid political regime by creating a halo of legitimacy in respect of such legal output. Nevertheless, the 2020 constitutional amendments were pushed with the significant negligence toward the established and previously exercised constitutional parameters, which somehow implies to incomprehensive political disturbances within the black box.Content of amendment, its legal nature, and technical proceeding—all significant aspects of the 2020 constitutional reform were intentionally and perfectly put away from the state of immaculacy with no coherent reason or foreseeable gain. In this case, I am going to reflect more on formal and procedural than contextual aspects, presenting evidences of its unconstitutional nature of the 2020 reform. Its content analysis is a separate matter deserving for review in other publication.
Speaking on procedure, Chapter 9 of the Russia’s Constitution3 outlines procedural parameters of constitutional amendment establishing four different options for constitutional review. The activation of each depends on what provision of the Constitution requires reviewing.
The first two options (Procedure #1&Procedure #2) technicallyare not referred as to amendments in Russian jurisprudence, although they are alteration of the name list of the federal units (subyektfederatsii)4 in Article 65 (1) of Russia’s Constitution. The last two options (Procedure #3&Procedure #4)directly affect the other articles of the Constitution, and they are treatedas a constitutional amendment in Russian law.
Procedure #1, Article 137 (2). In order to change the name of any federal unit of Russia, a new name of such anunit shall be included in Article 65 (1) of the Constitution by the Decree (Ukaz)5 of the President of Russia based on the decision of the federal unit. No Parliament is engaged. Neither the Constitution, nor other law definesthe President’s power to amend the Constitution in this way, but the Constitutional Court of Russia granted this option to the President6. Five times7prior 2020, the President of Russia altered the federal unit names in the Constitution.
Procedure #2, Articles 65 (2), 137 (1). In order to change the number or the current status of federal units of Russia, a name of the newly created federal unit shall be included in Article 65 (1) of the Constitution by the respective federal constitutional law on the creation of such an unit within Russia. The legal bases for this procedure is determined also by the federal constitutional law8 outlining the actions-list for both internal remake of Russia’s federal structure (i.e. merger & acquisition of federal units) and partial or complete incorporation of any other sovereign state into the realm of the Russian Federation. By the way, the Crimea was annexed and incorporated into the Constitution of Russia within this option9. Including this particular one, six times10 prior 2020, a federal constitutional law altered Article 65 (1) of the Constitution.
A few words about a federal constitutional law (federal’nyikonstitutsionnyizakon) as a source of law in Russia and as an act of Parliament. It is a specific legal instrument with the legal force in between the Constitution of Russia and an ordinary federal law (federal’nyizakon) and with certainparliamentary voting issues. A federal law requires majority (50%+1) in both houses11 of the Federal Assembly(Federal’noyeSobraniye) to be adopted (Articles 105-107)12. A federal constitutional law requires the supermajority (two-thirds of the Statute Duma and three-fourths of the Federation Council)13in both houses of the Federal Assembly to be adopted14, and the President of Russian cannot exercise the veto power towards it (Article 108 (2)).
Procedure #3, Article 136.Amendments to the provisions of Chapters 3-8 of the Constitution15shall be submitted by the President of Russia, not less than one fifth of either house of the Parliament, the Government, and the parliament16 of any federal unit (Article 134). For 2020, in four of five cases only the President of Russia used this authority; the State Duma did it only once.
Article 136 envisaged that amendments to the provisions of Chapters 3-8 of the Constitution of the Russian Federation shall be adopted according to the rules fixed for adoption of federal constitutional laws and come into force after being approved by the parliaments of no less than two thirds of the subjects of the Russian Federation. Hence, amendments to the Chapters 3-8 of the Constitution is inserted into the Constitution by the “Law of the Russian Federation on the Amendment tothe Constitution<‘On [Name of the Law]’>” (ZakonRossiiskoiFederatsii o popravke k KonstitutsiiRossiiskoiFederatsii, hereinafter, constitutional amendment law), according to the supermajority adoption criterion for a federal constitutional law17.The Constitutional Court of Russia stressed that the legal nature of the constitutional amendment law shall be neither like the one of federal constitutional law, nor of federal law18.
It is quite interesting that a federal law (hereinafter, Constitution Procedural Law)19, not a federal constitutional law (as in other cases), sets the procedural mechanism for adoption and ratification of a constitutional amendment law20. Notice that both the Constitutional Court and the Constitution Procedural Law use the word ‘amendment to the Constitution’ in singular, not in plural for this case, meaning, one constitutional amendment should be initiated towards only literally one constitutional subject (or internally related constitutional subject).
The most significant procedural aspect of constitutional amendment law adoptionis the ratification criterion: it shall come into force only after its ratification by the parliaments of no less than two-thirds of the federal units21. According to Constitution, neither Constitutional Court of Russia is engaged, nor referendum isneeded to complete this amendment process.
Pursuant to Articles 12-14 of the Constitution Procedural Law, after ratification, the Presidents signs the constitutional amendment law, promulgate it, and it comes into effect not before publication. Constitutional amendment in effect shall be inserted into the up-to-date text of the Constitution of the RF and the President of Russia officially promulgates a new updated (amended) version of Russia’s Constitution.
Prior 2020, four constitutional amendment lawswere adopted by using this procedure, each covering adifferent subject:
- Constitutional Amendment Law (December 2008) on changing the term of office of the President (6 years instead of 4) and of the State Duma (5 years instead of 4), Articles 81 (1) and 96 (1) amended22;
- Constitutional Amendment Law (December 2008) on supervision of the Government by the State Duma, Article 103 (1) (v) inserted and Article 114 (1) (a) amended23;
- Constitutional Amendment Law(February 2014) on reform of the Supreme Court of Russia and the Prosecutor’s Office, Articles 71 (o), 83 (e), 102 (1) (zh), (z), 104 (1), 125 (2), 126, 128, 129 amended; Article 83 (e1) inserted, Article 127 omitted, Chapter 7 renamed24;
- Constitutional Amendment Law(July 2014)25granting the President with the new power to appoint up to 10% of the total number of members of the Federation Council, Article 83 (e2) inserted, Article 95 amended26.
From the technical standpoint, each of the enlisted constitutional amendment law consisted of two parts: Article 1 — the legal body of constitutional amendment, and Article 2 — coming into force clause. Constitutional amendment and the constitutional amendment law are technically inseparable and they come into effect simultaneously.
The last option, Procedure #4, Article 135, is the most complicated one that has never been activated before. Since, Chapters 1, 2, and 9are unamendable27, in case of review of the provisions of these chapters the Constitutional Assembly (KonstutsionnoyeSobraniye) shall be convened. The motion for review of these chapters shall be approved by the three-fifth of both houses of Parliament. For 2020, no federal constitutional law on this matter have been adopted yet. In theory, the Constitutional Assembly shall either: (a)to confirm the current version of the Constitution, or (b) to draft a new Constitution, which shall be adopted by two-thirds of the Constitutional Assembly or by the nation-wide vote28.
In January 2020, the constitutional amendment Procedure #3 for has been activated for the fifth time.From the beginning, this reform was fashioned as the deepest and the most extraordinary revision of the Russian Constitution. In fact, 41existing articles from Chapters 3-8 shall be amended and 5 new articles shall be inserted: Articles 67, 68, 69, 70, 71, 72, 75, 77, 78, 79, 80, 81, 82, 83, 93, 95, 97, 98, 100, 102, 103, 104, 107, 108, 109, 110, 111, 112, 113, 114, 115, 117, 118, 119, 125, 126, 128, 129, 131, 132, 133completely or partially revised; Articles 67-1, 75–1, 79–1, 92–1, 103–1inserted.
Here is a concise description of most confusing features of the 2020 amendment process.
First, despite the established order, (i.e. one constitutional amendment shall be one constitutional amendment law), the 2020 constitutional amendment law is a chaotic spectrum of unrelated amendments with completely different subject matters, affecting all amendable chapters of the Constitution, but still it is designed as one constitutional amendment de-jure. Surely, the constitutional alterations of such a kind can be categorised within the several groups and even subgroups of constitutional amendments (for example, social, biopolitical, ideological amendments, amendments towards public authority and local self-government etc.). Nevertheless, they cannot be treatedeven technically as one constitutional amendment, inserted by single constitutional amendment law. In 2008, two constitutional amendments on different subject matters (the President’s and the Parliament’s terms of office alteration & supervision authority of the State Duma towards the Government) have been reviewed simultaneously and have been introduced into the Constitution as two separate constitutional amendment laws, despite the fact that each amended only 2 articles at all.
Second,some pieces of the 2020 constitutional amendment law affecting the constitutional foundation of Russia (specially, on international obligations of Russia, human rights, ideograms, and de-facto different process of constitutional amendment approval) shall be inserted into Chapters 1, 2, and 9, not in Chapters 3-8. If such fundamental changes into the Constitution of Russia are to be introduced, the Procedure #4 should be activated, where plebiscite shall be appropriate.
Third, on the contrary to the both of the Article 136 of the Constitution and the Constitution Procedural Law, the 2020 constitutional amendment process had been complicated by the engaging of the Constitutional Court of Russia with a right to pass or not to pass an amendment through and by a mandatory Russian-wide vote (obshcherossiiskoyegolosovaniye) with a right to adopt or to deny the amendment (if passed by the Constitutional Court before). If the Parliament adopts a constitutional amendment law and the two-thirds of parliaments of federal units ratify it, it shall unconditionally come into force and update the current version of the Constitution. No other additional measures are needed then. An idea of ad hocRussian-wide vote is especially controversial and illogical. It is the weakest point in process of building the legitimacy for the 2020 constitutional amendment process, vital for Russian hybrid political regime. Not being technically a referendum (referendum has a separate and clear set of procedural regulation29), this redundant action is far beyond any reasonable or even imitation-like procedure. To make the situation even worse, this ad hocnot-a-referendum was designed as an obvious instrument of public opinion manipulation, hence the voting process was intentionally constructed as rather dim, blurred, and ambiguous. After the breakout of the COVID-19pandemics, the essence of such voting performance has become even more meaningless. The technical aspects of Russian-wide vote—the 7-day process of voting, experimental online voting in Moscow and Nizhny Novgorod Oblast, unreasonable rules for ‘home vote’, etc. — are both odd and disturbing.
Fourth, in 2020 case, the constitutional amendment law consisted of 3 (not 2, as usual) parts with different time frames for coming into force: Article 1 —the legal body of constitutional amendment; Article 2 — description of procedure for Russian-wide vote, tied with positive decision of the Constitutional Court; Article 3 — coming into force and miscellaneous issues. All articles comes into force separately: first, Article 3 (entered into force on 14 March 2020), than Article 2 (into force on 16 March 2020), and finally Article 1 (the constitutional amendment itself) will enter into force after a Russian-wide vote). Neither the Constitution, nor the Constitution Procedural Lawallows any situational breach between any parts of the constitutional amendment law. No separate entering into force of a constitutional amendment itself and a legal instrument (constitutional amendment law) inserting one into the Constitutionis allowed, as well. Surprisingly, new (amended) version of the Constitution of Russia, including the 2020 constitutional amendment, is already available30on the Official Internet Portal of Law Information (www.pravo.gov.ru)—official (since 2011) online resource for publication and citation of legal instruments in Russia. According to the internal logic of the 2020 constitutional amendment process, the new (amended) version of the Constitution of Russiashall be officially published after successful Russian-wide vote, since amendment is still ineffective.
Fifth, the 2020 constitutional amendment process was designed as an ultra-speed performance. Instead of being symbolic, fascinating, and solemn action, it turned out to be a purely artificial, ridiculous, and obscene process31:
15 January 2020 — President Putin in his addressto the Federal Assembly called for constitutional reform and issued an Executive Orderon establishing the work group for preparation of the Constitutional Amendment Draft Law(75 people included);
20 January 2020 — President submitted to the State Duma the Constitutional Amendment Draft Law ‘On Improving the Regulation of Certain Aspects of the Organisation and Functioning of Public Authority’ (No 885214-7).
23 January 2020 — State Duma adopted the Constitutional Amendment Draft Law in first reading and launched collecting the textual amendments and proposals in respect the Draft Law with 6 February 2020 as a deadline);
3 February 2020 — State Duma moved for the first time the deadline on collecting the textual amendments to 14 February 2020;
17 February 2020 — State Duma moved for the second time the deadline on collecting the textual amendments to 2 March 2020;
2 March 2020 — President submitted to the State Duma a list of textual amendment to Constitutional Amendment Draft Law No 885214-7, altering the Draft Law previously submitted by him32;
10 March 2020— State Duma adopted the Constitutional Amendment Draft Law in second reading (including motion on ‘nullifying’ (obnuleniye) Putin’s and Medvedev’s presidential terms);
11 March 2020 — State Duma adopted the Constitutional Amendment Draft Law in third reading; Federation Council adopted the Constitutional Amendment Law;
12 March 2020 — The required number of ratifications on the Constitutional Amendment Law by the parliaments of the federal units has been achieved;
13 March 2020 — 100 % of the parliaments of federal units have ratified the Constitutional Amendment Law;
14 March 2020 — President signed, promulgated the 68-page Constitutional Amendment Law33, and issued the inquiry to the Constitutional Court of Russia regarding the conformity this very law with Chapters 1, 2 and 9 of the Constitution of the Russia; Article 3 of the Constitutional Amendment Law has entered into force;
16 March 2020 — Constitutional Court in 52-page Conclusion (Zakliucheniye) confirmed that the Constitutional Amendment Law did not contravene the Chapters 1, 2, and 9 of the Constitution of the RF34; Article 2 of the Constitutional Amendment Law has entered into force and has ongoing effect;
17 March 2020 — President signed a Decree on a Russian-wide voteregarding the Constitutional Amendment Law on Wednesday, 22 April 202035. A Russian-wide vote day shall be a not-working day according to the Constitutional Amendment Law;
25 March 2020 — Because of COVID-19 pandemic, President signed a new Decree cancelling 22 April 2020 vote36. Date of new vote was not specified;
1 June 2020 —The President signed a new Decree on a nationwide vote regarding the Constitutional Amendment Law on Wednesday, 1 July 202037;
1 July 2020 — Official and de-facto the last day of a 7-day Russian-wide vote.
As one can see, there are many flaws in procedural and formal dimension of the 2020 constitutional amendment process in Russia, especially with its contextual part, which is even more disturbing and ignites a series of jokeson this matter. In summary, we can observe the decay of constitutionalism in Russia for the last decades. I am not saying we should over-romanticize the current version of the Russian constitution but the 2020 amendments will completely damage and undermine even the tiniest glimmers of the legal order still left in this hybrid political system.
Expert of Centre of Policy and Legal Reform (CPLR),
Member of Ukrainian Bar Association (UBA)
1 Constitution of the RF, adopted by nationwide vote on 12 December 1993, Rossiiskayagazeta, 25 December 1993. (In Russian).
2 Literally, ‘Chairperson of the Government’ (Predsedatel’ Pravitel’stva).
3 The Constitution of the RF consists of Preamble (Preambula) and two sections (razdel in singular): Section I ‘Main Provisions’ as an effective body of Constitution, structuring into nine chapters (glava in singular) and short Section II ‘Concluding and Transitional Provisions’ as temporary ‘grandfathering’ clauses. For the sake of this research, all chapters referred herein are the chapters of ‘Main Provisions’ and if no mention made otherwise, all articles mean the relevant articles of the Constitution of Russia. For example, Chapter 9 ‘Constitutional Amendments and Review of the Constitution’, Articles 134-137.
4 Literally, ‘a subject of federation’. The generic term for constituent entities of Russia.
5 Literally, ‘an imposition’.
6 Resolution of the Constitutional Court of RF in the Case on Interpretation of Article 137 (2) of the Constitution of Russian Federation, No 15-P, dd. 28 November 1995,Rossiiskayagazeta, 14 December 1995. (In Russian).
7 List of signature dates and issued indexes of the Decrees of President of Russia, which have amended the Constitution of RF: No 20, dd. 9 January 1996; No 173, dd. 10 February 1996; No 679, dd. 9 June 2001; No 841, 25 July 2003; No 130, dd. 27 March 2019.
8 FCL‘On the Procedure of Admission to the Russian Federation and Formation of a New Subject within the Russian Federation’, No 6-FKZ, dd. 17 December 2001, Rossiiskayagazeta, 20 December 2001. (In Russian).
9 FCL ‘On Admission of the Republic of Crimea to the Russian Federation and Formation of the New Subjects within the Russian Federation − the Republic of Crimea and the City of Federal Significance of Sevastopol’, No. 6-FKZ, dd. 21 March 2014, Rossiiskayagazeta, 24 March 2014. (In Russian).
10 List of signature dates and issued indexes of theFCLs (excluding the above-mentioned one), which have amended the Constitution of RF: No 1-FKZ, dd. 25 March 2004; No 6-FKZ, dd. 14 October 2005; No 2-FKZ, dd. 12 July 2006; No 6-FKZ, dd. 30 December 2006; No 5-FKZ, dd. 21 July 2007.
11 226‘ayes’ of 450 deputies of the State Duma + 86 ‘ayes’ of 170 (for now) members of Federation Council.
12 Technically, a Federal Law is adopted (priniat) by the State Duma, and is approved (odobren) by the Federation Council.
13 300 ‘ayes’ of 450 deputies of the State Duma + 128 ‘ayes’ of 170 (for now) members of Federation Council.
14 Technically, a Federal Constitutional Law is adopted (priniat) if is approved (odobren) by both houses of Parliament.
15 First Section ‘Main Provisions’: Chapter 3 ‘The Federal Structure’, Chapter 4 ‘The President of the Russian Federation’, Chapter 5 ‘The Federal Assembly’, Chapter 6 ‘The Government of the Russian Federation’, Chapter 7 ‘Judicial Power’, Chapter 8 ‘Local Self-Government’. Please, note that the Second Section ‘Concluding and Transitional Provisions’ are unamendable due their temporary ‘grandfathering’ effect.
16 Constitution calls them ‘legislative (representative) bodies of the subjects of RF’ (zakonodatel’nyye (predstavitel’skiye) organysubyektov RF).
17 The Constitutional Court of the RF stipulates such naming phrase for this type of legal instruments. For more information, see: Resolution of the Constitutional Court of the RF in the Case on Interpretation of Article 136 of the Constitution of Russian Federation, No 12-P, dd. 31 October 1995, Rossiiskayagazeta, 9 November 1995. (In Russian).
19 Federal Law ‘On the Procedure of Adoption and Entry into Force of the Amendments to the Constitution of the Russian Federation’, No 33-FZ, dd. 4 March 1998, Rossiiskayagazeta, 10 March 1998. (In Russian).
20 The explanation of this phenomenon is quite an easy one. Federal constitutional law / federal law paradigm in Russia has not been determining by the importance of the issues outlined by the specific legal instrument; it depends exclusively on reference in the text of the Constitution. According to Article 108 (1), federal constitutional laws shall be adopted on the issues envisaged by the Constitution of the Russian Federation. Since, Article 137 mentioned a federal constitutional law and Article 136 did not, no federal constitutional law is needed for the procedural purpose.
21 For now, at least 57 ‘ayes’ of 85 federal units (including disputed Republic of Crimea and City of Federal Significance Sevastopol). Please, note that vast majority of the international community continues to consider the Autonomous Republic of Crimea and the City with Special Status Sevastopol as inseparable constituent parts of Ukraine.
22 Law of the RF on Amendment to the Constitution of RF ‘On Alteration the Term of Office of President of the Russian Federation and of the State Duma’, No 6-FKZ, dd. 30 December 2008, Rossiiskayagazeta