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The constitutionality of six terms Russia’s high court must decide if Putin can legally serve another two presidential terms. Here’s how the decision is supposed to work.

6 cards
  • What happened?
  • How do you assess the constitutionality of a constitutional amendment? That sounds weird.
  • Is this how it’s always done?
  • So on what grounds is Putin asking the Constitutional Court for review?
  • Could the court (at least theoretically) cut the nullification clause while removing the word “consecutive” from the current Constitution, forcing a hard two-term limit?
  • How will the court rule?
1

What happened?

Russia’s State Duma adopted the second reading of constitutional reform legislation initiated by Vladimir Putin. When Putin introduced the bill, the plan was described as an effort to prohibit one person from serving more than two presidential terms. At the last moment, however, lawmakers introduced a radical amendment to “zero out” the presidential term clocks of Russia’s current and former presidents (Vladimir Putin and Dmitry Medvedev), adding a clause to the constitutional reform legislation that says the new two-term hard limit only takes effect with the next presidential election. If the original draft law had passed without this revision, Putin would have been unable to run for re-election in the future. Now he’d be able to serve another two six-year terms after 2024, when his current (fourth) term ends. In other words, Vladimir Putin could very well remain in office until 2036 (if he’s re-elected in 2024 and 2030).

Putin personally visited the State Duma on Tuesday and delivered a speech where he endorsed the idea of zeroing out his term clock, on the “one condition” that Russia’s Constitutional Court formally upholds the amendment as legal.

2

How do you assess the constitutionality of a constitutional amendment? That sounds weird.

The Constitutional Court is supposed to determine whether the amendments are consistent with the Constitution’s first (“The Fundamentals of the Constitutional System”), second (“Rights and Freedoms of Man and Citizen”), and ninth (“Constitutional Amendments and Review of the Constitution”) “fundamental” chapters (which can only be modified by adopting an entirely new Constitution). The new amendments passed by the State Duma on Tuesday propose changes to other sections of the Constitution. 

No later than seven days from the day the president of the Russian Federation files a request, as stipulated in part 2 of this article, the Constitutional Court of the Russian Federation is required to render an opinion about the compliance (or noncompliance) of draft provisions of this law with the provisions of chapters 1, 2, and 9 of the Russian Federation’s Constitution, as well as the compliance (or noncompliance) of the manner of entry into force of this law with the Russian Federation’s Constitution.

3

Is this how it’s always done?

No. Since the adoption of Russia’s current Constitution in 1993, the document has been amended four times, and the Constitutional Court has never once reviewed the amendments for constitutionality. Neither the Constitution, nor the federal government’s constitutional reform legislation, nor the Constitutional Court is granted such authority.

Moreover, in both 2009 and 2014, the judges of the Constitutional Court declined to review the constitutionality of proposed constitutional amendments, claiming to lack jurisdiction in this area. That said, this concerned laws that had already entered force, meaning that the court was actually being asked to decide if a new version of the Constitution complied with an older version that was no longer in force.

4

So on what grounds is Putin asking the Constitutional Court for review?

The court’s input is a new requirement that is specific to the current constitutional reform effort: Putin introduced a bill setting a procedure for passing the new amendments, and the Duma edited and approved that bill. The legislation establishes a procedure for Putin’s reforms to take effect that is not provided for elsewhere in Russian law.

If the current amendments were being passed according to established legal procedure, the Constitutional Court would not have had to step in. First, the Duma would have approved the amendments, and then Russia’s regional legislatures would have voted on them as well. Putin’s amendment procedure bill introduces two new stages: The current constitutional reform measures will be subject to a Constitutional Court ruling and then submitted for a nationwide voting process.

In this sense, Putin’s “one condition” for accepting the chance to remain Russia’s president for 16 more years was already embedded in a bill that he had introduced himself not long before the issue of zeroing out his term count arose.

5

Could the court (at least theoretically) cut the nullification clause while removing the word “consecutive” from the current Constitution, forcing a hard two-term limit?

No. If the judges rule that even one amendment out of the whole set proposed by Putin and approved by the State Duma is unconstitutional, then the entire amendment process will stop. That would leave the Constitution in its current form, with the word “consecutive” still available to allow presidents to serve two terms with one-term breaks in between.

In the case that inconsistencies are found between chapters 1, 2, and 9 of the Constitution of the Russian Federation and the as-yet-inactive measures of this law or the manner of entry into force of Article 1 of this law does not comply with the Constitution of the Russian Federation, they [the measures of this law] will not take effect, and an all-Russian voting process will not take place.

The judges’ decision-making on the new amendment approval procedure itself will be similarly constrained (this is on top of the fact that the procedure is already out of the ordinary). At least in theory, the judges could say they do not have the right to determine whether amendments that have not taken effect comply with the current Constitution. After all, that jurisdiction is not established anywhere in Russian law. A denial of jurisdiction would have the same effect as a rejection of any one component of the new amendments: The amendment approval process would come to a halt.

The Constitutional Court could also theoretically rule that, say, the current proposal to mention faith in God in Article 67.1 of the Constitution contradicts Article 14, which establishes Russia as a secular state. Article 14 cannot be revised because it is part of the “fundamental” Chapter 1. The proposed constitutional reforms also gesture toward the Russian ethnos as the foundation of the Russian state’s development, and the court could theoretically find that clause to be in violation of Article 19, another untouchable section of the current Constitution that bans ethnic discrimination. Article 19 is part of Chapter 2.

In any case, the judges have the last word here. They have a monopoly on the chance to determine which elements of Putin’s reforms are constitutional and which are not.

6

How will the court rule?

We don’t know. In 1998, the Constitutional Court explicitly banned Russia’s first president, Boris Yeltsin, from running for a third term. Of course, the court’s membership has since changed, but at the time, the judges called the two-term cutoff a “Constitutional limit” for the country’s heads of state. They did include a condition, however: If Article 81 of the Constitution were to be amended, the two-term limit could shift as well, and that’s precisely what the present reforms are aiming for. Today’s Constitutional Court judges will have to decide whether or not the first, second, or ninth chapters of the current Constitution contradict the proposed term nullification in any way.

In 2018, Constitutional Court Chief Judge Valery Zorkin said that if the Constitution must be amended, it should be changed in a “targeted” manner. However, independent legal experts have noted that 11 out of the 15 judges who sit on the Constitutional Court today were appointed by Vladimir Putin, and that number includes Zorkin himself. This means it is unlikely that the judges will go so far as to pick a fight with the president.

In 2014, after Putin officially declared Crimea to be Russian territory, the Constitutional Court ruled that his annexation agreement was constitutional the very next day. This is despite the fact that some legal scholars believed the court didn’t even have jurisdiction to consider that question.

Text by Denis Dmitriev

Translation by Hilah Kohen and Kevin Rothrock