Ivan Preobrazhensky

PhD of Political Sciences, Deutsche Welle columnist

The New Constitution of the Old President

Translated by Catherine A. Fitzpatrick

In his speech before the elite of the Russian ruling class earlier this week, Vladimir Putin announced a new constitutional reform, which, in essence, amounts to adopting a new fundamental law. The Kremlin is proposing a new “social contract” to the Russian people that will replace the “Crimean consensus” – new and restored social benefits in exchange for cementing within the Constitution the monopoly of the current ruling class over the country’s governance.

A new “social contract” is a necessity for Putin’s regime. When he first came to power, at the time of the second war in Chechnya and fairly regular and massive terrorist acts in Central Russia, including in Moscow, he proposed a similar deal to the Russian people – exchange of some political liberties for security. Having imposed “order”, Vladimir Putin continued to expand his powers at the expense of other governing institutions, destroying the constitutional order of Russia. Then a second contract was put forward – a promise of satiety and stability in exchange for the remnants of political liberties. This contract was a much tougher sell and resulted in mass protests of 2011-2012. And in 2014, the Kremlin came up with yet another offer: forfeit of even more liberties for the restored sense of Russian greatness through the war on Ukraine and forceful annexation of Crimea.

We have now entered the final stage in this process. The population, seriously impoverished as a result of the prolonged economic decline, which began even before Crimea and was aggravated by international sanctions, is offered an ambitious program of support for the poorest of its members in exchange for a new Constitution, which will enable Vladimir Putin to stay in power after 2024, when he can no longer, under current law, be re-elected another time to the post of the president of Russia.

Is This Really a New Constitution?

In his address to the Federal Assembly, Vladimir Putin said that his plan does not envision adoption of a new Constitution. A legal analysis of proposed amendments, however, suggest that it amounts to a fundamental change in Russia’s State system.

His first proposal is self-isolation of Russia from international law — an idea floated by the Russian ruling class for quite a while. This would enable Putin’s regime not to observe international obligations when they contradict Russian legislation. This is a reference to the abolition or amendment of Part 4 of Article 15 of the Constitution, which mentions the primacy of international obligations and agreements assumed by the Russian Federation over its domestic legislation. This change would allow Russia to selectively not comply with decisions of such organizations as the Council of Europe or the European Court of Human Rights and essentially make pointless Russia’s participation in these institutions under the new Constitution.

It should be noted that the article proposed for amendment is part of the so called “protected” part of the fundamental law. In order to rewrite it, it is necessary, under the Constitution, to convene a new Constitutional Assembly. At a minimum, a referendum must be held. Vladimir Putin was clear that he does not intend to do either. Instead, with a Presidential Decree, he has formed a “working group” (not stipulated under any current laws) whose task it is to amend the fundamental law. He has indicated, however, that Russian citizens are to approve his proposals by some kind of universal vote.

It is highly unlikely that proposals will be rejected, since the majority of the Russian population does not understand that it is Russia’s international obligations that most reliably protect many of their rights, including social rights, given the tendencies of the authoritarian regime. In time, most likely such understanding may develop, but it may happen too late —after the amendment of the Constitution. Therefore, the international community must actively seek to explain this now, while such discussions are underway in Russia. Another point to be explained is that such a ballot would have no legal force; and neither would the follow-on amendments introduced through parliament, as they clearly violate the Constitution.

Understandably, the Kremlin is apprehensive about convening a Constitutional assembly, since the laws governing this procedure have not been updated since 1993. There may be an uproar, and most importantly, a delay. On the other hand, a referendum requires a set of rather precise formulations, which would tie Putin’s hands for the real re-writing of the Constitution. Putin is clearly counting on securing a wholesale consent from the people, and not a detailed, article-by-article approval process. Moreover, a national referendum cannot be combined with Federal Parliamentary or Presidential Elections which is exactly what the Kremlin intends to do.

Putin’s decision to disregard overt requirements of the Constitution is nothing new. Since his very first days in power, he has been consistent in eroding Russian Constitutional government institutions and creating parallel institutions and procedures. Some of the early attacks included establishment of federal districts and the institution of presidential representatives, not prescribed in the Constitution. The Russian State today even features law-enforcement bodies that exist outside the Constitutional framework – such as Rosgvardiya (the National Guard). Rosgvariya is controlled by the Presidential Administration, whose powers are described by the fundamental law as “the president forms his administration”.

The Problem of 2024

In addition to rejecting the primacy of International Law, Putin has proposed to strip the remnants of the autonomy of judges at the highest courts. At the president’s demand, the docile executive authority of the upper chamber of parliament, the Federation Council (the president can even appoint some of the senators) will, under the new Constitution, dismiss judges from the Supreme and Constitutional Courts (“in connection with a loss of confidence” by the head of government.

Putin has also proposed to renounce compliance with the European Charter on Local Self-Governance, ratified by Russia; and to make municipalities part of government authority, absorbing them as structural sub-divisions of regional state administrations. One of the possible goals of this initiative is to exclude independent political candidates from running in and winning municipal elections.

Likewise, the proposed amendment of the Article on Presidential Elections (which introduces a 25-year limit on candidates and forbids candidates with residences in foreign countries) politically neutralizes powerful opposition figures currently in exile.

Putin has also proposed to remove from the text of the fundamental law the stipulation that prohibits the president from running for elections to this post more than twice “in a row”. Putin himself has already used this clause, having essentially served five terms (four as president and one as prime minister), but he wants to preclude his potential successors from taking advantage of it.

The plan will certainly result in a major re-distribution of powers. The State Duma, the lower chamber of the Russians parliament is now in the process of approving the candidate for prime minister nominated by the president. The Duma also forms the cabinet of ministers, with the exception for the so-called “presidential quota”: the heads of the law-enforcement agencies and
possibly the head of the Foreign Ministry. The new Constitution requires the Duma to do so in consultation with the Federal Assembly, and not appoint them without any discussions as now.

Finally, Putin’s proposal legitimizes a government agency (that already exists parallel to the Constitutional realm) – the State Council. Russia’s governors serve at the State Council and are appointed on a rotation basis. It is not clear what the new State Council would look like, how would it be staffed and by whom, and most importantly, what would be its powers. We can be certain, however, that Vladimir Putin has already thought through those details.

Judging from the people whom the president of Russia has appointed to the “working group” to amend the Constitution, the group is a mere formality. There are practically no lawyers among the members of the group; these are extras in a political show. The real draft for Constitutional reform, has most likely already been written by the presidential administration.

One can speculate on the various motives behind the constitutional amendments. It appears that Putin intends to leave the post but remain in power in some other role. He may choose to run the country from his position at the Security Council (to which he has transferred as his deputy the ex-prime minister Dmitry Medvedev, who had resigned after the publication of the address). Although it is more likely that he will head a reformed State Council which will likely be assigned some sort of extraordinary powers under the new Constitution. This is an attempt to formulate something like a system of checks and balances which would guarantee Putin, even in the event he leaves the post of the president, the possibility of running the country.

The international community has very few instruments to block this path of Russia’s self-isolation. Bringing the country into international alliances would not have any effect on the internal situation in Russia. Mobilization of the currently apolitical majority of the population dissatisfied over monopolization of power within the country is the biggest hope for stopping these encroachments. It is for this reason that Vladimir Putin, before rolling out his constitutional reform, has offered a long list of new social perks and benefits, including hot meals for school kids subsidized by the federal budget. He is clearly counting that as result, some positive meme like a “Putin breakfast” (or lunch) would be established. But for now, this is a direct trade where the right of the current ruling class to extend its tenture by at least a decade is bought with a hot meal.

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