23 January 2020
Elena Lukyanova analyzes the proposed constitutional amendments
Source: Moscow Helsinki Group [original source: Forbes]
According to Elena Lukyanova, a laureate of the Moscow Helsinki Group and professor of constitutional law and local self-government at the Higher School of Economics, Putin’s proposed amendments entail, contrary to his assertions, changes to the basis of the constitutional order in Russia. The amendments contain significant contradictions to the so-called “protected” chapters of the Constitution. Here is a partial analysis (without inclusion of federal and international legal aspects). A more detailed analysis would require the participation of a large number of experts and time, of which there is little given the speed with which these amendments are being pushed through. However, it seems that the main conclusions will be the same.About the procedure
After the initial address to the Federal Assembly, we assumed that the amendments would be potentially damaging and would contradict the 1st and 2nd chapters of the Constitution. However, no one could have imagined that the proposed bill would also clash with aspects of federal law, specifically “the procedure for the adoption and implementation of amendments to the Constitution of the Russian Federation” as well as with the 9th chapter of the constitution. Neither the constitution, nor the aforementioned law permits the creation of a constitutional commission, the same applies to the prospect of a popular vote to approve these changes. All these measures, which are funded by taxpayers, have nothing to do with the procedure for amending the basic law of the country and contradict the provisions of the constitution’s 9th chapter.
The proposal from Golos to adopt a special law for conducting an “approval vote” is valid, since it can help avoid particularly malicious violations, but it is not based on any constitutional or legislative prerequisites.
Furthermore, when the draft amendments were introduced to the State Duma, the requirements detailed in “the procedure for the adoption and implementation of amendments to the Constitution of the Russian Federation” were violated, as “a justification for the need to adopt this amendment” is required (analysis by expert A. A. Troitskaya).
As is well know, justification means providing convincing arguments alongside the proposed changes. However, the explanatory note does not contain any such justification: “the powers of the Federation Council are proposed to include the termination, on the basis of a proposal for such by the President of the Russian Federation, of the powers of judges of the Constitutional Court of the Russian Federation, judges of the Supreme Court, judges of cassation and appeal courts in the case of committing an act that discredits the honour and dignity of a judge, as well as in other cases provided for by Federal law that indicate the impossibility of exercising their powers by a judge”. This phrase is just a repetition of the content from the amendment. The reason and requirement for reducing the number of judges of the constitutional court is not justified at all. Thus, procedure has not been followed.
On the restriction of political rights and the equality of citizens before the law
Restrictions on the passive suffrage (right to stand for election) of Russian citizens and the right to access to state services on the grounds that they possess a document concerning their right to reside outside the Russian Federation are contrary to Article 1 (a person, their rights and freedoms are of the highest value), and Paragraph 2 of Article 6 (the equality of rights and freedoms) which are part of the first chapter of the Constitution. The amendments also contradict Paragraphs 1 and 2 of Article 19 of the Constitution (equality before the law and the courts, regardless of any circumstances), Paragraph 2 of Article 27 (the right of free entry and exit), Article 32 (the right to elect and be elected; the right to equal access to state services), Article 46 (the unrestricted right to legal defence of rights and freedoms), and Paragraphs 1 and 2 of Article 62 (the right to multi-citizenship), which are in the second chapter. All the restrictions imposed are disproportionate and baseless.
Living abroad does not make someone a traitor to their native land. I consider that such amendments, a priori marking all Russian citizens who are resident or temporarily abiding outside its borders, as potential traitors, contradict Paragraph 1 of Article 21 (the dignity of citizens) of the Constitution of the Russian Federation.
On local government
The president’s address talks about the necessity of consolidating the principle of unity of the system of public authority and at the same time the expansion and strengthening of the powers of local government. The submitted draft of the amendments actually talks about a ban on restricting the rights of local self-government and about compensation for additional costs that arise as a result of the public bodies fulfilling functions and competencies of national importance. However, it is proposed to implement all these guarantees in a completely different configuration of relations between state authorities and local government bodies. We are talking about a new interpretation of the term “unified system of public authority”. There is no doubt that both the state authorities and local government operate publicly. But the point of local government lies in the fact that it is not included in a monolithic system of state power. And this situation is clearly and precisely enshrined in the Russian Constitution.
Article 12 (of the first chapter) specifically emphasizes the independence of local government within the limits of its own powers and its non-inclusion in the system of state power. The use of the term “unified system of state power” at a constitutional level leads to the restoration of a (Soviet-style) centralised and subordinate system of representative bodies of power and (following the model of Article 77 of the Constitution of the USSR) a single vertical executive branch.
Thus, the proposed amendments actually cancel the independence of municipal authorities. This independence is declared, but organisationally municipal power is embedded in the system of state power, which categorically contradicts Article 12 of the Constitution, and also Paragraph 2 of Article 4 of the European Charter of Local Government. If for the past several years such a situation has already existed in practice and partly at the level of legislative regulation, then raising it to constitutional level will stabilise and multiply this practice, preventing it from being obstructed in court.
On the judiciary
For the judiciary, the proposals for amendments to the Constitution will mean that the presidential administration will actually shift the system of checks and balances in favour of the presidency. If the president, and not the Higher Qualification Board of Judges of the Russian Federation oversees the cases of judges and proceeds in a disciplinary fashion, he will acquire excessive control over the organs whose duty is to check the constitutionality and legality of his decrees. This contradicts Articles 120 and 121 of the Constitution. Thus, an insoluble intra-constitutional conflict arises, giving rise to legal uncertainty.
The proposal for the removal of judges by the Federation Council is also contrary to the Constitution. A judge who was dismissed by the Higher Qualification Board could appeal its decision, but would not be able to complain to the Federation Council. How could a judge complain to it? Would the Federation Council really spend several hours on personal review of the case of a judge? This would be a very fast procedure operated by bureaucrats. The Constitution (Article 46, Chapter 2) provides for the right of all citizens to legal defence, which by virtue of Paragraph 3 of Article 56 is not subject to restriction. Consequently, the proposed amendments violate Article 46 of the Constitution (Chapter 2) – the right to legal defence.
On the Constitutional Court
All powers of the Constitutional Court are strictly limited by Article 125 of the Constitution. The presence in the draft amendments of the possibility of their extension by extra-constitutional means (by means of a federal law ‘On the Constitutional Court) opens the possibility for a free interpretation of any constitutional provisions outside the framework of Article 16 and Article 135, Section 1 (Chapters 1 and 9) of the Constitution, interpretation that will be obligatory for execution.
Giving the president the right to initiate abstract constitutional oversight of draft federal laws and draft laws of Russian regions places the Constitutional Court in the unacceptable position of judge in its own case, with potentially the power of subsequent specific oversight of the legal provisions of these laws. In addition, there are no grounds to restrict the number of members of the Constitutional Court, and this would be extremely harmful given the number of appeals to the Court and the rule according to which the Constitutional Court cannot consider two cases simultaneously. This restricts the rights of citizens to legal protection as set out in Article 46 of the Constitution (Chapter 2).
Violation of the principle of separation of powers
The draft amendments de facto place the Prosecutor’s Office and the judiciary, including the Supreme and Constitutional courts, within the vertical of the president’s powers.
The amendments reduce the status of the government and the prime minister. The defence, law enforcement and international ministries are turned into part of the presidential office, unaccountable to parliament, and the status of the prime minister the government is in practice reduced to that of an ordinary minister in terms of their independence and accountability to the State Duma – the prime minister can now be dismissed separately from the rest of the government.
To understand this arrangement it must be remembered that the Council of the Federation in Russia is not an elective body: 55% of its members are appointed by the president and by heads of Russia’s regions, while 45% are delegates from regional legislative assemblies. In this way, if the constitutional amendments are adopted, the president will be responsible for organising the work of the courts, the Prosecutor’s Office and the defence and law enforcement ministries, for which he will need the consent of representatives most of whom are appointed by the executive branch. This violates the principle of separation of powers, as set out in Article 10 of Chapter 1 of the Constitution.
On the State Council
In accordance with Article 11 of the Constitution (Chapter 1, ‘The Foundations of the Constitutional Order’), state power in the Russian Federation lies with the president, the Federal Assembly (the Council of the Federation and the State Duma), the government and the courts. This list is exhaustive and does not provide for any other forms of state bodies. Still less such as could decide the bases of internal and external policy and prioritise the direction of social and economic development of the state. In other words, what is at issue is the transfer of the centre of gravity of state power from the institutions of president and parliament to another place where there are no existing constitutional limitations.
The proposed procedural outlines for the selection of members and functions of the State Council contradict Article 10 (Chapter 1). This is because the selection of members by the State Council by an office holder standing above all the branches of government, and also the constitutional reference to a law about this body without establishing the limits of its powers, categorically fails to fit in with the established constitutional principle of separation of powers. The State Council is now transformed from a body called upon by design to ensure cooperation with the regions and provide a special representation of the governors within the system of executive power to one more presidential body the members of which, probably, in addition to the president and the prime minister, will be the speakers of the chambers of the Federal Assembly and key ministers of the defence and law enforcement agencies, forming a kind of ‘senior government.’
The creation of the State Council, therefore, contradicts the foundations of the constitutional order of Russia, which is categorically forbidden by Article 16 of the Constitution.
In this way, the proposed amendments to the Russian Constitution, and also the procedure for their discussion and adoption, is in contradiction with, and in practice will lead to the revision of, a series of provisions of Chapters 1, 2 and 9 of the Constitution. In accordance with Article 16 of the Constitution, no other provisions may contradict the foundations of the constitutional order of the Russian Federation, while the provisions of its first chapter cannot be revised other than in the order established by the current Constitution.
Consequently, in accordance with Article 135, Section 1, of the Constitution, such amendments may not be considered by the Federal Assembly and must be adopted by another procedure set out by the Constitution.
This text provides analysis by a legal expert.
Translated by James Lofthouse, Anna Bowles and Simon Cosgrove