Not very How legal is the mad dash to overhaul Russia’s Constitution?

On March 11, both houses of the Russian Parliament passed legislation proposing major constitutional reforms. The second and third articles of this draft law specify the mechanisms by which the constitutional amendments would be adopted. The procedure laid out here is highly unusual and involves an assessment by the Constitutional Court and a nationwide vote, neither of which has been done before or codified in any previous law. Meanwhile, Russia’s Central Election Commission is already moving forward with preparations for the nationwide vote. Meduza asked legal scholar and “Golos” council member Arkady Lyubarev to weigh this bizarre legislation’s compliance with Russia’s Constitution and put it in the context of generally accepted democratic standards.

What’s being proposed

Article 136 of Russia’s Constitution says any revisions to chapters 3 through 8 of the Constitution must be made according to the procedure prescribed for the adoption of federal constitutional law. This means that adoption requires the votes of at least two-thirds of the deputies in the State Duma and at least three-quarters of all Federation Council members. From here, according to Article 136, the amendments enter into force, after they’ve also been approved by the regional legislative authorities in at least two-thirds of Russia’s constituent territories. 

With the new constitutional reforms, however, only the third article of the legislation will enter force after the law wins the necessary approval of the regional legislative authorities. This third article states that the president appeals to the Constitutional Court with a request to review the legislation’s compliance with the Constitution’s first, second, and ninth chapters. The legislation gives the court seven days to reach a decision.

If the court rejects the legislation, all the amendments do not enter force and the nationwide vote is canceled. If the court upholds the legislation, the ruling enacts the law’s second article, which provides for a nationwide vote called by the president. If more than half of all votes are cast in favor of the legislation, the constitutional amendments laid out in the bill’s Article 1 (including the revision that “zeros out” Putin’s term clock) will enter force. Otherwise, the law and all its constitutional revisions are rejected. 

What are the legal problems here?

The vote’s timing

The very idea of holding a nationwide vote on constitutional amendments probably doesn’t violate the Constitution’s Article 136. The constitutionality of the procedure specified in the government’s new law, however, is questionable. The fundamental question here is: when should the vote be held? If it had been held, say, after the Federation Council’s adoption but before Russia’s regional parliaments considered the legislation, there’d be no noticeable contradiction with the Constitution. People vote and express their opinion. Then, on the basis of their constituents’ stated wishes, each region’s legislative body would decide whether or not to support the amendments. It would be both democratic and legally irreproachable.

But the voting proposed here occurs only after the representative institutions capable of adopting amendments have had their say. If voters support the reforms, there won’t be a problem. But what if they oppose the amendments? The federal authorities should at least entertain this possibility. The legislation says the constitutional reforms do not enter force, in this event, but Article 136 of Russia’s Constitution doesn’t provide for the non-enactment of amendments adopted by the State Duma, Federation Council, and two-thirds of all regional parliaments.

The Constitutional Court’s role

One problem with the Constitutional Court’s role is the same as with the nationwide vote: it comes too late in the amendment process. But there’s another issue here, as well. The court’s actions are regulated by Article 125 of Russia’s Constitution and corresponding federal laws, none of which grants the court such powers. The one-week deadline is also legally dubious. The issue is simply too important to justify such a short deadline. 

A nationwide vote instead of a referendum

Article 3 of Russia’s Constitution states that the referendum and free elections are the highest direct expressions of the people’s authority. What about a “nationwide vote”? The Constitution says nothing about a “nationwide vote” as an expression of the people’s authority.

In fact, a nationwide vote on constitutional amendments falls within the scope of referendums described in Russian law. In other words, it’s a referendum in all but name. Lawmakers aren’t calling it a referendum, however, for one simple reason: the proposed rules for conducting this vote strongly diverge from the norms codified in Russia’s federal constitutional law on referendums. That’s why the authorities came up with something new that has no existing constitutional definition.

Russian law guarantees quite extensive rights to citizens participating in a referendum, and the public is now being denied those rights. These guarantees concern the verification of the issue submitted for a referendum, rules for campaigning both “for” and “against” the proposals at hand, rules for financing these campaigns, and a procedure for voting and counting votes with monitoring by representatives of different political forces, as well as responsibility for violations of the law. Instead of this, lawmakers rushed to think up abbreviated voting rules and crammed them into the second article of the reforms bill.

The Central Election Commission should clarify a detailed voting procedure in a document called “The Procedure for Preparing and Conducting the Nationwide Vote.” The project already adopted by the commission, however, severely truncates many norms found in election and referendum laws that establish control over the voting process. First and foremost, this concerns control over early voting and home voting. When discussing the project at the Central Election Commission, several experts have already drawn attention to this. What the commission will ultimately decide here remains unclear, but officials so far have demonstrated little interest in providing such oversight. 

Voting on unrelated amendments

Besides compliance with the letter of Russia’s Constitution, it’s also worth asking if the proposed voting procedure conforms to democratic principles. The amendments in question are a set of unrelated norms (or “blocks” of norms). When making his state-of-the-nation speech and proposing the constitution revisions in the first place, Vladimir Putin divided the amendments into seven blocks. Lawmakers later added more amendments that weren’t linked to these blocks. 

In these actions, the president clearly violated a clause in Russia’s federal law on adopting and enforcing constitutional amendments, which requires that one law encompass interlinked constitutional revisions (this, incidentally, is how two unrelated amendments were introduced in 2008 — as two separate draft laws). Later this year, Russians will be asked to vote either for or against the entire package of amendments, and people who support some of the revisions but not other amendments will be deprived of the opportunity to express their will.

Officials at the Central Election Commission have already compared this all-or-nothing voting scheme to a fixed meal, but this is a flawed analogy. After all, someone who shows up for a fixed meal probably wants four courses. And if that person doesn’t eat something, nobody comes out and shoves the leftovers down their throat. Kremlin political strategists, by contrast, are trying to hitch unpopular ideas to proposals that are widely supported. Voters will have no chance to reject specific pieces. In this case, neither society nor the authorities will know which amendments enjoyed genuinely conscious public support and which passed as “included with purchase.”