A Closer Look at Russia’s Constitutional Amendments and Supporting Legislation
In January of 2020, Putin gave his annual Address to the Federal Assembly, announcing that amendments would be made to the Russian constitution. Those amendments have now been written up and passed. Recent legislation supporting their implementation as well as clarifying how a transition of power will work has also been passed. Now we can start to get a better picture of what these amendments will mean for Russia’s legal and political system and compare how these changes actually square with what Putin said in his speech.
Legal History and the Balance between the Executive and Legislative Branches
First, it is important to note the contextual background of law in Russia and the differences as well as similarities compared to what many westerners are used to. Until the post-Soviet era, there was not a long tradition of Russians being viewed as citizens with individual rights but they were instead granted some degree of social protections and stability in exchange for obedience to authoritarian rule. There was the concept of group rights and duties in the tsarist era up until the 1860’s and then dependent rights in the Soviet era. As Jane Henderson, a retired lecturer at the School of Law at Kings College London and author of The Russian Constitution: A Contextual Analysis, told me in an email exchange:
“[G]roup rights in this context are rights (and duties) for people because they are members of a particular group, not rights for the group as a single entity. There was little tradition of rights for individuals as individuals…. [In] Soviet times, the theory was dependent rights: that individuals were given rights [primarily social and economic] in return for the duties they performed to the state — made explicit for example in the 1977 USSR Constitution Article 59.”
Indeed no constitution had existed at all in Russia until 1906 — a result of the Russian Revolution of 1905 — and that was effectively revoked in 1917. However, Alexander II — a reformist tsar who outlawed serfdom in 1861 — instituted several legal reforms, including the right to trial by jury with independent judges overseeing cases. These rights existed in Russia from 1864 until 1917, making Russia unique in that its judicial system was more democratic while the rest of its governmental institutions remained autocratic. As Professor Bill Bowring, an expert on Russian law at the School of Law at Birbeck College at the University of London, has pointed out, these legal rights only formally came into being in many other European countries at around the same time: “Russia has, like all its European neighbors, a long and complex relationship with human rights — and with the rule of law and judicial independence, which are its essential underpinning.”
The current constitution of 1993 came about as a result of the dramatic showdown between then-president Boris Yeltsin and the parliament. Yeltsin had dissolved parliament after members of the legislature refused to continue to allow him to rule by decree and wanted to roll back the many harmful economic policies he had implemented during this period. They had also threatened to impeach Yeltsin for abuse of power. Yeltsin ultimately ordered a military attack on the parliament building, leading to hundreds of casualties. He then suspended the existing constitution.
In order to prevent any other center of political power from having the ability to confront or challenge the president again, Yeltsin engineered the design of a constitution that provided for a parliament that would be little more than a rubber stamp for the president’s prerogatives. In Putin’s January speech announcing that there would be constitutional changes, he suggested that the parliament would be granted more authority. However, upon closer inspection, the changes relating to the balance between the executive and legislative branches of government as they have now been finalized are barely perceptible. As Henderson explains:
“[T]he idea of the President having direct oversight over certain key federal ministries (such as those dealing with defence, state security, internal affairs, justice, foreign affairs, emergency situations) was enshrined from the very beginning in article 32 of the 1997 Federal Constitutional Law on the Government.* This oversight is now specified at constitutional level in Article 83 (e-1)…. The State Duma [the lower chamber of parliament] now does have the power of approving ministers, except those in the key ministries just mentioned. Previously the Duma only had a hand in consenting to the Government Chairman (Prime Minister), under the original version of Article 103(1)(a). Now it also has power over approval of the Government Chairman’s suggestions as to who should be the deputy chairman and the federal ministers (again, apart from those in the key federal ministries). However, it is not clear the extent to which the Duma will review individual ministers, or whether it will merely be put in the position of approving the government as a whole.” [emphasis mine]
Putin did emphasize as the constitutional amendments were being drawn up that Russia — due to its size and complex composition of different cultures and faiths — would have to be governed as a presidential republic and not a parliamentary republic:
“I think that Russia, with its vast territory, with many faiths, with a large number of nations, peoples, nationalities living in the country — you can’t even count, someone says 160, someone 190, you know, needs strong presidential power.”
He reiterated this idea in a speech at the Valdai conference in October.
There were also amendments relating to the judicial branch of government. Since 2000, Putin has overseen the expansion of rights for those accused of crimes as well as introducing more organization within the everyday functioning of the system. Examples of the former include the rights of habeas corpus and trial by jury, and increased rights to exculpatory evidence. After certain reforms made by Putin to the criminal code, acquittal rates in bench trials (only heard by a judge) doubled and acquittal rates in jury trials tripled, contributing to a 40 percent drop in the overall incarceration rate and a 95 percent drop in the juvenile incarceration rate since 2001.
He also introduced the role of bailiffs and Justices of the Peace (JP’s), improving the efficiency of the justice system. JP’s are required to be over the age of 25, have a law degree, and pass an exam and a strict security clearance. They are formally appointed by either regional governors or regional legislative bodies. It has been established that JP’s demonstrate independence — in other words, they base their decisions on the written law — in the vast majority of cases before them. Exceptions involve the very small percentage of cases that are politically sensitive, particularly to the Kremlin. In these instances the JP’s will often go along with power as a matter of being socialized into the system rather than being overtly told to do so.
Henderson acknowledges that the professionalization of the Russian legal system seems to have improved in recent years, adding:
“[T]here is now a credible group of human rights lawyers, that is lawyers whose profession is to defend human rights cases. This would have been unthinkable, I believe, in earlier eras. I also think particularly younger people — and especially educated young people — will take a different view to those in charge who are of an age which in other circumstances would mean they would be drawing their old-age pension.”
But whether the constitutional amendments that involve changes to the judiciary will support the continued progressive evolution of the legal system or hamstring it is debatable.
In addition to the hierarchy of courts in which actual cases involving specific parties are litigated — similar to the US hierarchy with a Supreme Court at the top — many European countries have a court that is separate and apart which has the sole objective of reviewing legislation for constitutionality. That court in Russia is known as the Constitutional Court. The recent amendments have granted the Constitutional Court the ability to review proposed legislation, not just legislation that has already been passed, for compatibility with the country’s constitution.
While this sounds potentially positive on the surface — being able to get guidance on whether a bill would be considered constitutional before passing it — Henderson sees this as a way for the president to also have an expanded veto power. Whereas the president did not previously have a veto right if legislation involved a federal constitutional law that was passed with a sufficient number of votes in the parliament, he can now refuse to sign and refer it to the Constitutional Court for review. Whether the president’s refusal to sign sticks will depend on whether the judges on the Constitutional Court agree that there are constitutional problems with the legislation.
Judicial independence becomes important in determining whether this process will be an honest review or just a fancy two-step for a president who wants to manipulate the process and sidestep the parliament.
This brings us to the amendment that now grants the president the right to remove judges via a request to the Federation Council. Since the parliament currently is — by design, as discussed above — a fairly weak institution relative to the president, the likelihood that the Federation Council will go against a president’s request to remove a judge is low. As Henderson explains: “It must be said that as with other judges, removal from the Supreme Court or [Constitutional Court] can only be “for cause,” but this can include vague formulations, such as “bringing the judiciary into disrepute” so might be easily manipulated.”
Another amendment has to do with the Russian constitution trumping international legal decisions. There are variations around the world as to whether a country has a monist or dualist approach toward international law. Monist states enforce international laws and treaties as soon as that state signs on. Dualist states require a process by which an international treaty or law is incorporated into that state’s legal system before it takes force, such as a legislative vote of ratification. Some countries have a combination of the two. For example, in the United States, some international laws can be applied directly by the courts and others cannot.
The 1993 Russian constitution has what many consider to be an “expansive” approach to international law. For example, Article 15(4) states that:
“Generally recognised principles and norms of international law and international treaties of the Russian Federation shall be an integral part of its legal system. If other rules have been established by an international treaty of the Russian Federation than provided for by a law, the rules of the international treaty shall apply.”[emphasis mine]
There is also Article 17 which states that:
“The rights and freedoms of man and citizen shall be recognised and guaranteed in the Russian Federation according to generally recognised principles and norms of international law and in accordance with the present Constitution.”
This would make it seem that Russian law was to be subordinate to international law. But Henderson points out that there is room for debate:
“[T]he question is what we mean by a law. Is it all law of any sort that is adopted within Russia? Or is it merely federal law? Might it include Federal Constitutional Law? It certainly is not obvious that it includes the Russian Constitution….Article 15(4) is definitely still in force, and Russia is adamant that it upholds its treaty obligations. However, Article 15(4) does not expressly say that international treaty might override the Constitution.”
Russia ratified the European Convention on Human Rights and Fundamental Freedoms (ECHRFF) in 1998 and has been an effective member of the Council of Europe since 1996, which means that Russian citizens can bring a case before the Council’s court, the European Court of Human Rights, if a question arises as to Russia’s enforcement of the rights and freedoms of the ECHRFF. In order to bring such a case before the European court, a Russian citizen must exhaust all possible remedies in domestic courts first.
There has been controversy in Russia over cases brought before the European court. One case involved the shareholders of the Yukos oil company. The shareholders of Yukos, which was dissolved by the Putin government years ago, had demanded compensation. After getting no relief in Russian courts, the shareholders brought their case to the European court and won. The Constitutional Court in Russia ruled in 2017 that abiding by the European court’s decision would violate the Russian constitution because the shareholders would essentially be getting compensated for having engaged in a tax avoidance scheme.
Another issue involved a total ban on prisoners in Russia being able to vote. It is specifically stated in the Russian constitution that prisoners are denied voting rights. This, however, contradicted the ECHRFF that Russia had ratified in 1998. Controversy has erupted in recent years over the contradiction, with some members of the Duma requesting that the Constitutional Court rule on whether submitting to the European court’s rulings and obligations was compatible with the Russian constitution. The Constitutional Court issued an opinion in 2015 that ECHRFF was compatible in theory with the Russian constitution, but left the door open for further review of any ruling from the European court that might arise from a specific case brought before it.
The relevant constitutional amendment this year has expanded the power of the Constitutional Court of Russia in this regard. According to Henderson: “Following an appeal by one of a limited number of agencies, not only can the Court decide that it is not possible to apply the decision of an interstate agency because it contradicts the Constitution, but also it can refuse to apply such a decision on grounds of being contrary to the “foundations of public order” (whatever that might mean).”
The reference to “public order” is a new and recurring theme with the 2020 constitutional amendments as we shall see below.
The State Council and the Power of Municipal Government
Starting in October Putin submitted several bills that indicate he is setting the practical groundwork for an eventual transition of power. The first was a bill in connection with the State Council.
The State Council was created in 2000 by presidential decree and began as an advisory body to the president to coordinate different parts of government. It was originally composed of the heads of regional government as compensation for being stripped of immunity and automatic participation in the Federation Council, the upper chamber of parliament. Putin took this step to address what he saw as the incorrigible corruption and lack of accountability of the regional governors at the time. Membership in the State Council allowed them a forum to communicate directly with the president but did not necessarily grant any power beyond that. As reflected in the new constitutional amendments, it is now to become an official executive body. Rather than being ceremonial, it will have the power to set the direction of both domestic and foreign policy, with a likely focus on socio-economic development.
The constitutional amendments, while granting the president the power to create the body, provided no details about how the president would go about creating the body or filling positions on it. Russian news agency TASS reported the October 14th bill submitted by Putin stipulated that the State Council will serve as an advisory body headed by the Russian president and will include the PM, the president’s chief of staff, speakers of both chambers of parliament, and the regional governors. Representatives of local municipal government may also be included at the president’s discretion. Furthermore, according to TASS:
In order to deal with the agenda of the council, the presidium of the State Council will be established. Its composition will be determined by the chairman. Besides, special commissions and working groups will be created in order to organize activity in specific spheres. Representatives of federal and regional government bodies, other state bodies, local governance bodies and organizations can form part of the commissions. Members of specific commissions do not have to form part of the State Council. The chairman and members of the State Council take part in its activity on a voluntary basis.
Members must also have no residency abroad, citizenship outside of Russia, or hold funds in foreign bank accounts.
According to an analysis by Chatham House, the bill submitted by Putin would allow:
“the president to achieve at least three things at once: further de-institutionalize governance structures to give him more flexibility and appointment powers; step back from day-to-day governance while still retaining control; and structure decision-making between his subordinates on national priorities across branches of power and layers of the federation.”
These analysts point out that the State Council became particularly active around the National Projects program in 2018, an infrastructure development project critical to Putin’s plan to increase living standards and quality of life in Russia. Due to the pandemic, the National Project’s goals have been moderated.
The Chatham House analysts have a negative take on the changes which they see as potentially usurping the power of local mayors and officials.
Henderson agrees that there are concerns in this area as the State Council bill is the first piece of post-amendment legislation that includes the term “unified system of public power.” This term was mentioned in Putin’s January speech in relation to creating a system of closer cooperation between the state (legally consisting of central and regional authorities) and local municipal governments that would ostensibly prove more equitable to Russian citizens. The need cited for this included disparities among the municipalities in opportunities and implementation of social rights. It is a new concept that was incorporated into Chapter 8 of the Russian constitution via the 2020 amendments. Chapter 8 of the constitution involves the power of local government and the recent amendments added language as Article 132(3), stating: “bodies of local self-government and bodies of state authority are included in a unified system of public authority in the Russian Federation and conduct interaction for the most effective solution of tasks in the interests of the population living on the respective territory.”
As pointed out by Elizabeth Teague in her article “Russia’s Constitutional Reforms of 2020,“ this is inconsistent with another part of the Russian constitution: “This appears directly to contradict Article 12 of Chapter 1 of the constitution, which reads, ‘Local self-government shall be independent within the limits of its authority. The bodies of local self-government shall not be part of the system of bodies of state authority.’”
It is believed that a likely consequence of this amendment will be the continued watering down of local authority, with the Kremlin now having the power to determine the staffing of local governments that were supposed to enjoy some autonomy. Considering that Putin stated in his January speech the intent of, “expanding the authority of local government,” this doesn’t bode well.
As for the State Council in particular, what exactly the body will do and how is still somewhat vague and it will remain to be seen how things unfold. On December 21st, the State Council’s secretary, Igor Levitin, who is also an aide to Putin, said that the Council “in its new format” will better facilitate action among all governing bodies:
“The constitutional amendments introduce a new legal category: the public power… In order to ensure a coordinated operation of all bodies of power, to take their opinion into account during decision-making, special authority is needed. This authority exactly is laid out in the […] law on the State Council….Before the law was adopted, the State Council was a venue for establishment of productive work of the government and the regions…Now, the area of influence is extended. Now, we will build relations between all bodies of public power.”
Similarly, there has been concern raised about the amendment to Article 67 of the constitution that would allow for the designation of “federal territories” which could allow the central government to directly take over and govern large areas of the country with any number of justifications since the wording of the amendment is vague. This power could conceivably be used to move Russia from a federal system to a unitary system of government.
Senators for Life
On October 31st, Putin submitted another bill regarding the role of members of the Federation Council, in which the Russian president would have the ability to appoint senators for life and for ex-presidents to apply for such a senatorial seat. According to TASS:
The bill says that senators — representatives of the Russian Federation — are appointed for six years or for life by presidential decrees. The head of state can appoint no more than seven lifetime senators. The appointment of senators is a presidential prerogative, but not a duty, so the president can use it at any time….
The requirements for former presidents are envisaged in a separate clause. A Russian president, who has ended their tenure after a presidential term has expired or in advance, will acquire the status of a senator since the moment of sending an application, with all the required documents attached, to the Federation Council.
Additionally, senators must be over the age of 30, have no residency abroad or citizenship outside of Russia, and have an “impeccable reputation.” An updated draft of the bill has removed a previous requirement that the outgoing president apply within three months to sit in the Federation Council. They can now apply at any time.
RT reported additional details on the makeup of the Federation Council pursuant to Putin’s proposed bill:
According to the draft law, “On the procedure for forming the Federation Council,” the body will include two representatives from each of the country’s 85 regions (one [each] from the legislative and executive authorities), a former president of Russia after leaving his post, and no more than 30 representatives chosen by him or her, with up to seven appointed for life.
This obviously provides Putin with another option for political influence after leaving the presidency.
Immunity for the Departing President
Also in his package of bills, Putin proposed the granting of immunity to all former presidents, including for any crimes allegedly committed before taking office. RT reported on the final bill signed on December 22nd:
“In practice, it means that Putin can’t be taken to court for criminal or administrative offences after leaving the Kremlin. The same rules will apply to Dmitry Medvedev, who held the position from 2008–2012, and all future office holders. The new set-up was included in constitutional amendments, approved by a public vote in June, that made significant changes to Russia’s system of governance.
The bill stretches the previous presidential immunity system back to before the person concerned took office. They will also be excused from arrest or searches as well as questioning by police or investigators. Previously, these protections only covered actions, carried out during the time in office or investigations of actions, connected to presidential duties.”
It might be reasonable to grant some protection to ex-presidents from politically-motivated legal vendettas, but this bill appears to extend the immunity to activities of the ex-president prior to holding presidential office, which seems excessive and hard to justify. Moreover, the process for lifting immunity, which is allowed for treason or other very serious crimes, is complicated. As Henderson comments, “It’s quite a tortuous process which must be completed within three months from the original accusation in the State Duma. Whether it would ever be successful is another question.”
Many of the points reflected in the constitutional amendments this year had already been laid out in federal legislation in some fashion in recent years. The amendments formally codified them into the Russian constitution. In doing so, the complex and contradictory nature of some of the modifications has been made more obvious for those who take the time to study them.
What matters most, of course, is what Russians think of these changes. With a 68% turnout in the plebiscite this summer, 78% voted in favor of the amendments. In 2019, popular opinion in Russia was the highest it had been since 2003 in support of amending the constitution. Putin was likely aware of the public’s receptivity to such a move.
It must be acknowledged, however, that there are troubling incongruities in how Putin characterized these changes in his January speech and what they actually look like. This should give one pause, not due to whether such changes will get the approval of critics in the west or not (this shouldn’t be a primary concern to Russians), but whether these changes will actually hold back the progress Putin seemed to be articulating in his January speech, which implied a recognition that Russian society had reached a sufficient level of stability and maturity to begin taking the next steps toward a less rigid and more participatory system.
*Federal Constitutional Laws are a special type of federal law to cover areas specifically mentioned in the Constitution with more detail; they must be passed by a majority of the parliament and signed by the president.