Putin’s New Constitution: The Court Weighs In

Putin proposed limiting presidential terms to two in total (instead of two consecutive ones, a loophole that allowed Putin to run three times); prohibiting holders of foreign passports and residence permits from working in public service positions; and giving more powers to the State Council, an advisory body.

Insofar as all of those provisions were supposed to be enshrined in the constitution, many hastily concluded that Putin was preparing a plan for stepping down from the presidency after his second sequential (and fourth presidential) term ends in 2024. Chairing a newly empowered State Council seemed like a reasonable way for Russia’s long-time leader to continue to oversee the system while complying with the letter of the constitution.

Putin also proposed fixing the minimum wage above the poverty line (which in Moscow is currently equivalent to $220 per month) and keeping pensions adjusted to inflation. Strange as it might seem to include those provisions in a constitution, many observers decided that the Kremlin needed them to sweeten the deal.

Russian lawyers protested. In Russia’s constantly changing legal landscape, the constitution seemed to be the one pillar of stability. Still, many breathed a sigh of relief, thinking that the president was preparing for an eventual leave-taking. Those thoughts were premature.

On January 20, 2020, President Putin submitted his draft amendments to the State Duma, Russia’s parliament. More controversial norms became public.

An amended Article 68 mentions the Russian language as the country’s official language because of the special role people of Russian ethnic background have played in building the Russian state. In my opinion, it is dangerous in a multiethnic state like the Russian Federation to elevate one ethnic group’s special state-forming role to the level of a constitutional principle.

Another amended article (Article 67, paragraph 1) states that the Russian Federation is an entity with a 1,000-year history that honors the memory of ancestors who passed on to the next generations their ideals and their faith in a god. In 2020, this amendment feels artificial and unnecessary because of Russia’s many religious minorities and a general diversity of opinion on religion and beliefs.

It all turned out to be a smokescreen. Valentina Tereshkova, who was the first woman in space, in 1963, and who is currently an MP, introduced a new amendment that reset Putin’s previous presidential term count back to zero. This amendment caused such an unprecedented criticism of Tereshkova that the Duma’s speaker, Vyacheslav Volodin, had to protect her by stating that people who attacked her were attacking Russia.

To be enacted, the amendments had to be adopted by the Federal Assembly (comprised of two chambers, the Duma and the Federation Council) and the regional parliaments, approved by the Constitutional Court, and approved by all Russians in a national ballot. When this mixed bag of amendments was forwarded to the Russian Constitutional Court, the court drafted its opinion in a matter of two days and expeditiously delivered its remarks on Monday, March 16, 2020.

I anticipated that the Constitutional Court would accept some of the amendments, especially those changing the institutional landscape. I was very curious to look at the arguments regarding amendments that clearly violated existing constitutional provisions, namely, those mentioning a god, the special role attributed to people of Russian ethnicity as union-makers, the power of the president, acting together with the parliament’s upper chamber, to impeach judges of the high courts, and, of course, the presidential term being reset to zero.

As a lawyer, I know that when arguing in favor of a controversial matter, it is important to build an extremely strong argument to convince your opponent. The Constitutional Court appears not to have wanted to convince anybody.

With respect to inserting mention of a god into the constitution, the Constitutional Court merely stated that such did not contradict the secular nature of the Russian state because the mention is not linked to any particular religion and therefore does not discriminate against any Russian citizens. The court further held that the amendment simply «sought to highlight the need to consider it in drafting state policy and to take into account the social and historical role played by religion in Russia’s statehood.»

As for a special role for ethnic Russians as a state-building people, the court ruled that it does not disparage the dignity of other ethnic groups and was based on an objective assessment of the role of Russian people in the formation of the Russian state. The court provided no further arguments or evidence substantiating this claim.

The cherry on the cake was resetting the number of Putin’s presidential terms back to zero. The Constitutional Court concluded that the decision as to how many times a person could run for president had to strike a balance between various constitutional values. On one side, a democratic state presupposes strict limitations on the number of terms. On the other side, «The constitutional concept of democracy implies a chance for people to choose freely the person who they believe deserves to be the head of state." The Constitutional Court further noted that an opportunity to run for an office does not mean a definite victory because other candidates can merely criticize the president, whereas the president has to show results. Finally, the court added that «the legislative body can take into account the historical factors of a particular decision, including existing threats to society, and political and economic conditions.»

Russians say that brevity is the sister of talent. But the Constitutional Court’s brevity without persuasion seems more to reflect a lack of respect and the absence of any good reasons for ruling one way or the other.