Analysis of the Russian Constitutional Court Judgment Upholding Amendment that would allow Putin to remain in Office until 2036
Siddharth Sijoria [1]
The Constitutional Court[2] of Russia by its decision dated 22.03.2020 has upheld an amendment to the constitution that would allow Putin to potentially remain the President until 2036. After this decision, the amendment would be voted upon in a referendum which is likely to receive popular support given the cult Putin enjoys. The original position (Article 81) in the constitution allowed an individual to run for two Presidential election “in a row”. A third term was legal if it occurred after an interval of two consecutive terms.
This amendment removed the words “in a row” and introduced a two-term limitation on Presidential reelection. Ostensibly the amendment limits multiple election by one person. However, the underlying object appears to allow Putin to stay in office for 4 terms because the amendment is prospective and will not take into consideration previous terms served by any President.
In this blog, I will assess reasoning of the Court in upholding the amendment and argue that similar amendments elsewhere have been ruled unconstitutional for being undemocratic and against the concept of’ republican form of government’; an unamendable feature of the Russian Constitution.
Court’s Verdict
The Court recognized the fundamental intention of the amendment is to establish constitutional practice of periodic turnover of persons holding the position of President by introducing two term limitation[3]. However, the Court did not answer if 4 continuous term would itself create a permanency for Putin. It rather observed that Legislature enjoys discretion in making a choice amongst available constitutional values. Thus, the Parliament could have either introduced more severe restrictions on re-election or let the people decide on continuity of its leader. Recognizing People’s right to choose its leader as an important value of the Russian Democracy[4], it found no problem with the amendment.
Further, the Court did not find the amendment violative of Chapter 9 (Amendment clause) which recognizes Republican form of Government as an unamendable feature in the Constitution. In 2002, the Constitutional Court had itself observed that the substance of republican form of government requires ‘ rotation of power’ as its basic facet. Despite the existence of this precedent, the Court dealt with this issue superficially and declared the amendment valid in deference to parliament’s discretion without delving into the merits of the challenge. In next part I will mention the decisions of the Colombian and Benin Constitutional Court that declared attempt to manufacture permanency in office as anti-thesis of Republic form of government.
Republican form of Government as unamendable feature of Russian Constitution
The limitation of two consecutive terms in article 81 (3) of the Constitution indicated its spirit and a specific intent against confiscation of power. The Colombian Constitutional Court decision[5] had declared second re-election of President Uribe unconstitutional using the “Substitution doctrine’ and held that the continuance of same Person in the President’s office for more than two terms violates the principle of separation of powers, democracy, check and balances as it would allow one individual with authority to appoint judges, and other public officials required to keep a check upon its office. The incumbent would select pliant and obedient officers rendering the idea of checks meaningless.[6] Moreover, it would create theoretical impossibility for others to participate in elections which is an essence of ‘republican form of government’. In this regard the Benin Court had observed in its judgment [7]that –
“the democracy implies theoretical possibility of each citizen to govern and also be able to govern in return. This rotation can only be realised if the Constitution and other legal framework provide equality of opportunity to citizens to get elected. Absence of term limits on how long a person can hold power signifies a risk of confiscation and personalisation of power by one person at the expense of society at large”.
Further this amendment cannot be ratified through a referendum as Chapter 9 requires amendment to unamendable features only through formation of constituent assembly. In 2011, the Benin Court had declared referendum concerning extension of tenure of the Members of Parliament as unconstitutional. It observed that a Court while dealing with the validity of a referendum must keep in mind the prevailing social atmosphere and see if the result of referendum would alter or manipulate the Constitution. It reiterated that any changes that result in confiscation of power must be nullified despite the popular support it enjoys. For, these reasons , even declaration of People’s will trough referendum cannot legitimize alteration to constitution’s basic feature.
Conclusion
In Russian Constitution, rotation of power has been recognized as unamendable feature since its inception. Despite the existence of Court’s precedent requiring rotation of power as an essential ingredient of Republican form of Government, the Court failed in its duty by neglecting its own dictum. Moreover, by simply upholding the amendment in deference to Legislative discretion, it neglected its constitutional duty to check the amendment’s validity on its merit. Thus, for these reasons the amendment is unconstitutional and cannot be voted upon in a referendum.
[1] Advocate practicing before the Supreme Court of India and Gwalior High Court
[2] The Russian Constitutional Court consist of 15 judges out of which 11 are appointed by Putin. The present chairperson of the Constitutional Court Mr. Zorkin do not believe in departure from the text of the Constitution to look towards outside values. He believes that the interpretation of the Constitution must be based upon the Russia’s unique history that includes “authoritarian elements” as a fundamental reality of Russian Constitution. Mr. Zorkin’s views are also shared by his colleagues on the bench who have observed the need of a strong leader for Russia’s unique democratic development.
[3] This position has also been taken by other Constitutional Courts which declared indefinite term limits as undemocratic as it creates theoretical impossibility for others to participate in election..
[4] Article 3 (3) of the Constitution to hold that Supreme expression of the Power of the People is via referendum and free election.
[5] C-141 of 2010
[6] Colombian constitutional court decision in case titled C-1040-2005
[7] DCC 11- 06 in 2011