Putin’s Cosmetic Constitutionalism

BY WILLIAM POMERANZ

President Vladimir Putin’s January 15, 2020, annual state of the nation address put forward a burst of proposed constitutional changes. The reforms included rebalancing of the 1993 constitution’s division of powers, expanding the power vertical, and limiting the position of international law within the Russian judicial system. Putin’s speech was immediately followed by the resignation of Prime Minister Dmitry Medvedev and the emphatic announcement that the dialogue on Russia’s future constitutional structure had begun.

But while Putin’s speech caught many by surprise, most of his proposals had been circulating for several months and in some instances have already been enacted into law. Moreover, Putin remained conspicuously silent on the burning issue of the day, namely, the looming 2024 succession crisis, when his second of two consecutive terms comes to an end. Where Putin ultimately lands will serve as the final verdict on these reforms, but all the early signs suggest that Putin is pursuing cosmetic, not substantive, change.

Putin dropped several hints in December 2019 that major legal reforms were on its way. At his annual freewheeling end-of-year news conference, he referred to the constitution as a “living” document and subject to change, with the specific exception of Chapter 1, which sets forth the “fundamentals” of the Russian constitutional system. The one amendment that Putin raised at his press conference was removing the word “consecutive” from Article 81, thereby suggesting that future presidents would be limited to just two terms.

Putin’s ruminations on the 1993 constitution’s future were not done. On December 24, 2019, the Russian president proposed yet another possible constitutional revision, this time calling for a unified system of “public power.” According to Putin, such a change would encourage better coordination between local self-government—which theoretically remains independent from official state structures—and regional institutions of state power.

Putin’s state of the nation address repeated the call for a unified system of public power and represents a clear victory for his vaunted power vertical. Local self-government already possesses a narrow jurisdiction, but it can still serve as a source of opposition, as last summer’s protests for free and fair elections to the Moscow City Council attest. Putin evidently now intends to water down the legal protections provided to local self-government under the 1993 constitution and increase centralized control.

Such a reform would benefit not only Putin. An enhanced unified system of public power would also raise the status of the current speaker of the Duma, Viacheslav Volodin, who has been an outspoken proponent of increasing the legislature's position within Russia’s division of powers at the expense of the president and the executive branch. Putin’s state of the nation address called for a significant enhancement of the legislature’s powers, including the ability to appoint the prime minister and future cabinet secretaries over the president’s objections. So, in light of Medvedev’s resignation and the appointment of Mikhail Mishustin as prime minister—a technocrat with no known political ambitions—Volodin emerges as an early winner in this constitutional reshuffle.

Any formal downgrade of the president’s power, however, would require a new position for Putin if he truly wants to stay in control past 2024. Fortunately, Putin already has a potential solution to this conundrum. Putin’s state of the nation address called for the promotion of the Russian State Council from an advisory body to an official government agency, and further called for its formal inclusion in the constitution. By proposing such a change, Putin appears to be following the successful example of Kazakhstan’s former president Nursultan Nazarbayev, who left the presidency in 2019 after more than three decades in power but retained his political influence as chairman of the constitutionally mandated security council. Putin similarly could endow Russia’s State Council with such general powers as maintaining national security, state integrity, and the unity of the Russian Federation. Putin’s system has always relied on a combination of formal and informal institutions to govern the country, and such a scenario could allow Putin to retain his influence through indirect means by heading such a body.

Putin’s state of the nation address included other technical changes. He wants to grant the Federation Council the right to remove Constitutional Court and Supreme Court judges at the president’s initiative – a significant increase in presidential power. He also proposed limiting how Russian law incorporates international treaties and the decisions of international legal tribunals. Putin had already enacted the latter principle into law in 2015, when he granted the Russian Constitutional Court the right to overturn decisions of the European Court for Human Rights that contravened Russia’s 1993 constitution. Now Putin wants to incorporate this principle directly into the constitution, which inevitably calls into question the enforcement of European Court decisions within Russia going forward.

Putin wants to introduce all these changes through the passage of federal constitutional laws, which require a higher voting threshold for passage in both houses of parliament, as well as the approval of two-thirds of Russia’s regional legislatures. Such laws are preferable to calling a constitutional convention, which is required if the reforms directly implicate Chapters 1 and 2 of the 1993 constitution (on the fundamentals of Russia’s constitutional system and on the civil liberties and freedoms of Russian citizens, respectively). Putin appears reluctant to put a major redrafting of the entire constitution on the table, although in his address he proposed a nationwide referendum as a means to seek public approval for these amendments.

Yet even after all these changes, there is still no direct answer as to what Putin does post-2024. His state of the nation speech merely included an evasive, noncommittal statement, saying “I don’t consider [the two consecutive term limit] a matter of principle, but I agree with it.” His address also called for Russia to remain a strong presidential republic, and one cannot rule out the possibility that when the constitutional dust settles, Putin gets his third consecutive term with the acclamation of the Russian people via a national referendum.

Putin clearly is weighing several options, yet it appears unlikely that he would launch this major project without resolving the succession issue to his own personal advantage.  Moreover, there is no indication that Putin aspires to the alternative role of retired elder statesman, especially when he is poised for even more foreign policy successes through 2024 and beyond. Therefore, until he declares otherwise, these multiple constitutional reforms still point to a single and highly predictable result: Putin remains in charge.