Putin is shaking up the constitution and there were reports suggesting that the process, as well as the amendments themselves, are probably unlawful/illegal despite the Constitutional Court's ruling stating otherwise. Speaking strictly from a legal standpoint, what can be said on the issue?
asked Mar 24, 2020 at 1:26
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36If you do not accept the courts authority, what kind of answer would you expect? By ruling it constitutional, the highest authority has said it is legal, so I am not sure what you are looking for.– PolygnomeCommented Mar 24, 2020 at 8:03
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5@dan-klasson it would be illegal if the constitution does not provide for such a mechanism of amendment, or if it does provide for one but the referendum were not carried out in accordance with those provisions.– phoogCommented Mar 24, 2020 at 15:55
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1Spare for the process itself, the only way an ammendment to the constitution can be unconstitutional is to make the constitution self-contradictory. The Constitution itself does not provide any limits on what kind of changes can be made, it only requires a certain process to be followed. The Constitution (at least, in Russia) is supperior to any other law and if some other law gets incompatible with the Constitution, it is the other law that loses power or needs to be changed, not the Constitution. The same holds if the Constitution is changed first and not the other law.– fraxinusCommented Mar 24, 2020 at 15:57
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1@dan-klasson The devil is in the details. The constitution defines the term “referendum”, including a strict process that a referendum must follow. In particular, 50% of the population must participate for it to be valid. The 2020 constitution amendments never mention any referendum, just a “nationwide vote”.– Roman OdaiskyCommented Mar 24, 2020 at 17:55
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2@dan-klasson Law doesn’t work that way, exact terms matter. Federal Constitutional Law 5-FKZ defines what referendum is (using the term всенародное голосование) and how exactly it must be held. The new law 1-FKZ carefully avoids both aforementioned terms and uses a different process. The constitution is clear about changes to itself: either a law duly enacted or a referendum, nothing else.– Roman OdaiskyCommented Mar 24, 2020 at 21:09
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3 Answers
Speaking strictly from a legal standpoint, what can be said on the issue?
Strictly speaking, the Constitutional Court is the top authority on the legality of anything. One can speculate as much as they want on whether the Court was biased, pre-determined, corrupt, defiant, flagrantly blatant or ridiculously unjust. These speculations would be pure politics. They do not change the fact that whatever the Court has decided is legal just by definition.
answered Mar 24, 2020 at 7:32
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19The court does not rule randomly, or is not supposed to do so. When declaring that a law is legal it will provide legal arguments based on the text of the Constitution. Such arguments, as well as the ones from opposing views, would provide an answer to OP. If I understand correctly OP is not asking who rules the constitutionality but what are the arguments to declare the changes legal or not, preferably with citations to the constitution parts which enable/disable such changes. Commented Mar 24, 2020 at 12:08
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3This is "strictly speaking" the correct answer. A constitution means what its interpreting judiciary says it means. However, the "pure politics" label doesn't make much sense here, because the process we are talking about is also pure politics. Those judges aren't picked by Jesus.– T.E.D.Commented Mar 24, 2020 at 21:24
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4@T.E.D. The point is that there is Politics.SE. "Keep flies and cutlets separate" like Russians say. Commented Mar 24, 2020 at 21:50
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1@AnonymousCoward I don't agree. OP effectively is questioning who rules the constitutionality: "probably unlawful/illegal despite the Constitutional Court's ruling stating otherwise". The only way it could be illegal despite the court's ruling is if you dispute the jurisdiction of the court.– JBentleyCommented Mar 25, 2020 at 22:58
I don't know what reports are claiming it's "probably unlawful/illegal" and why when the Russian constitution states:
- The Constitutional Assembly shall either confirm the invariability of the Constitution of the Russian Federation or draft a new Constitution of the Russian Federation, which shall be adopted by the Constitutional Assembly by two thirds of the total number of its members or submitted to a referendum. In case of a referendum the Constitution of the Russian Federation shall be considered adopted, if over half of the voters who came to the polls supported it and under the condition that over half of the electorate participated in the referendum.
(emphasize mine)
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2It's probably worth emphasising the other part of the "or" clause - "adopted [..] by two thirds of the total number of its members" because this part (approved by 2/3 of the federation members) has already happened, validating the changes, and the referendum has not happened and is not necessary since the other half of the "or" is sufficient for the changes.– PeterisCommented Mar 24, 2020 at 20:29
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1You quoted the wrong article by the way. Article 135 that you quoted deals with amendments to chapters 1, 2 and/or 9, which are not currently being amended. The relevant article is 136. Commented Mar 24, 2020 at 21:13
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1@RomanOdaisky No I didn't. Point 3 of article 135 does not mention anything about any chapters. It clearly states draft a new Constitution of the Russian Federation. That's not amending the constitution. That's drafting a completely new one. Hence why a 2/3 majority or referendum is required. Commented Mar 24, 2020 at 22:14
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@Peteris I wasn't aware of that. If you have a source I'll gladly amend my answer. Commented Mar 24, 2020 at 22:25
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1@dan-klasson here are some sources (in Russian, though) regarding the voting in the parliaments of federation members during 12-13 March. bbc.com/russian/news-51868944 zona.media/number/2020/03/12/protiv . The country-wide voting that will be held is not technically a referendum according to 135.3 of constitution, it's essentially a consultative vote for PR reasons prescribed by the new legislation implementing these amedments. From constitutional perspective, the amendments now can come into force whenever Putin signs them, as all the approvals have already been done.– PeterisCommented Mar 24, 2020 at 22:55
The entire procedure for amending the Basic Law of the Russian Federation in all its components is unlawful and does not comply with the current Constitution, neither in content nor in form. The content of Putin's amendments undoubtedly affects subjects directly related to Chapters 1 and 2 of the Constitution, which should be amended in a completely different order, and requires the convening of a Constitutional Assembly. The 1998 Law on the Procedure for the Adoption and Entry into Force of Amendments to the Russian Constitution requires that a justification be provided for the necessity of each constitutional amendment. This is not the case: the explanatory note to the draft outlines the content of the amendments themselves, but does not explain the reasons and purpose for the amendments. With the amendments, Putin is trying to solve his main problem - the removability of power. The new Constitution allows him to rule until 2036. Putin's amendments in Chapters 3 to 8 deal with fundamentally different topics: the powers and competencies of government bodies, the composition of government bodies, local self-government, international law, the social sphere, and the rights of citizens. However, the 1998 law On the Procedure for Adoption and Entry into Force of Amendments to the Constitution of the Russian Federation expressly prohibits making different and differently directed amendments to the Constitution through the mechanism of a single amendment. It establishes that only "interrelated changes to the constitutional text" may be covered by a single law of the Russian Federation on amendments to the Constitution.
