Analysis of the Presidential Draft Law on the Planned Amendments to the Constitution of the Russian
Aktualisiert: 17. Feb. 2021
Vladimir Putin presented yesterday to the State Duma a draft law on the amendments to the Constitution of the Russian Federation: http://duma.gov.ru/news/47555/
The envisaged constitutional reform does not even come close to meeting the announcements during Putin’s state of the nation speech. All changes are superficially purely cosmetic in nature. Even the extension of presidential powers merely confirms the already established constitutional practice.
Contrary to expressed announcements, the strengthening of Parliament's competences at the expense of the President is not taking place. Even elements of a parliamentary republic are missing.
Russia still remains a de iure presidential-parliamentary system, but according to constitutional reality it is a super-presidential republic.
The chance to balance the relationship between the state powers and to intervene in the currently defective system of checks and balances remains unused. The current deficits will even be exacerbated.
The most controversial amendment
If decisions are taken by intergovernmental associations (including those in which Russia participates), those decisions shall not be enforceable in Russia which are based on an interpretation of an international agreement that is contrary to the Russian constitution [Art. 79 RF Constitution (new)].
This sentence obviously contradicts the higher-ranking norm of Art. 15 (4) RF Constitution
This is the well-known attempt to square the constitutional circle:
After Art. 15 (4) RF Constitution ["The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied."] belongs to Chapter 1 (The Fundamentals of the Constitutional System), according to Art. 135 (1) and (2) RF Constitution this chapter cannot be revised by the Parliament, but only by means of an overall amendment of the constitution by the Constitutional Assembly.
However, a law on the Constitutional Assembly has not been passed since 1993.
The president's powers will not be limited by the constitutional reform, but will be significantly expanded. Only the announced limitation of presidential terms of office is to come. The wording "for more than two terms running" in Art. 81 (3) RF Constitution will be changed in "for more than two terms". Thus, the terms of office of the president will be limited to a maximum of two terms of office.
Below are just a few impressions:
In Art. 83 RF Constitution, lit d1 is included, which grants the President the explicit right to appoint but also to dismiss the heads of federal bodies (including federal ministers) in the fields of defence, security, home affairs, justice, foreign affairs, civil protection, public security). The prerequisite for this is prior consultation with the Council of the Federation. The remaining federal ministers are proposed by the Prime Minister to the State Duma for confirmation.
With the new version of Art. 83 lit e RF Constitution (new), the President receives both the right to propose to the Council of the Federation the candidates for the posts of Chairman of the Constitutional Court, Deputy Chairman and Judges of the Constitutional Court, and the right to make proposals for the removal of the Constitutional Judges. In accordance with the logic of Russian constitutional reality, the President will have control over the Constitutional Court in the future.
In accordance with the new version of Art. 95 (2) RF Constitution (new), the Council of the Federation will in future also include so-called representatives of the Russian Federation appointed by the President; however, not more than 10% of the total number of members of the Council of the Federation.
In the case of legislative initiatives, Art. 107 (3) RF Constitution (new) gives the President a further right to overcome the parliamentary veto by appealing to the Constitutional Court with a request to review the constitutionality of the law. Basically, the new version abolishes the originally envisaged possibility of a parliamentary persistence decision.
Prime Minister and Government
In accordance with the new version of Art. 111 (1) RF Constitution (new), the prime minister is still appointed by the president with the consent of the State Duma.
The Federal Ministers – with the exception of the Federal Ministers of Defence, the Interior, Justice, Foreign Affairs, Civil Protection, Public Security [prerogatives of the President according to Art. 83 lit d1 RF Constitution (new)] - are proposed for approval by the Prime Minister to the State Duma in accordance with Art. 112 (2) RF Constitution (new). The President shall appoint the latter in accordance with Art. 112 (3) RF Constitution (new).
The right of control over the decision of the Parliament remains with the President; moreover, Art. 111 (4) RF Constitution ["In case the State Duma rejects three times the candidates for the post of the Chairman of the Government of the Russian Federation, dissolve the State Duma and appoint new elections."] and thus the presidential-friendly interpretation of the Constitutional Court [the President has the right to propose the same candidate three times on a row] remains untouched.
In one sentence, "A mountain labored and gave birth to a mouse".
In accordance with Art. 83 lit g1 RF Constitution (new) the State Council, an advisory body to the President established in 2000 by a presidential decree, will be formed exclusively by the President and not in cooperation between the executive and the legislative branches.
The State Council will remain an advisory body and will only be marginally upgraded. The competence to "ensure coordinated functioning and interaction of all the bodies of state power" remains with the President in accordance with Art. 80 (2) RF Constitution. and to "determine the guidelines of the internal and foreign policies of the State" remains with the President in accordance with Art. 80 (3) RF Constitution.
The State Council is not anchored in the Constitution, but mentioned only once. Its status will be defined by a federal law. However, since federal laws shall not contradict the Constitution of the Russian Federation in accordance with Art. 15 (1) RF Constitution, the State Council will be limited to its advisory function. A fully-fledged inclusion of the State Council in the constitution requires not only a "simple" constitutional reform, but also a new regulation of the relationship between the state powers. To this end, however, not only Chapter 4 (The President of the Russian Federation), but also Chapter 1 (The Fundamentals of the Constitutional System) must be revised. In accordance with Art. 135 (1) and (2) RF Constitution, however, such a constitutional amendment may not be carried out by Parliament but exclusively by a Constitutional Assembly. However, an executive law is required to convene the Constitutional Assembly; no such law has been adopted since the Constitution entered into force in 1993.
Similar to the case of the Presidential Administration, the State Council can only exercise its influence - if at all - only informally and only if the President so desires. If the Council of State is not explicitly laid down in the constitution, it remains entirely dependent on the will of the future president. What informal role the State Council could possibly play in the future cannot be said at the moment, however.
P.S. According to the 'explanatory note' to the presidential draft law on the planned amendments to the Constitution of the Russian Federation of January 20, all proposals came from the working group set up for the purpose of changing the constitution. However, the working group was created on January 15, and met for the first time on January 17. The operational speed is really impressive. Honi soit qui mal y pense :-)