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OpEdNews Op Eds    H3'ed 1/15/21

A Closer Look at Russia's Constitutional Amendments

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Vladimir Putin
Vladimir Putin
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In January of 2020, Putin gave his annual Address to the Federal Assembly, announcing that amendments would be made to the Russian constitution. Those amendments have now been written up and passed. Recent legislation supporting their implementation as well as clarifying how a transition of power will work has also been passed. Now we can start to get a better picture of what these amendments will mean for Russia's legal and political system and compare how these changes actually square with what Putin said in his speech.

Legal History and the Balance between the Executive and Legislative Branches

First, it is important to note the contextual background of law in Russia and the differences as well as similarities compared to what many westerners are used to. Until the post-Soviet era, there was not a long tradition of Russians being viewed as citizens with individual rights, but they were instead granted some degree of social protections and stability in exchange for obedience to authoritarian rule. There was the concept of group rights and duties in the tsarist era up until the 1860s and then dependent rights in the Soviet era. As Jane Henderson, a retired lecturer at the School of Law at Kings College London and author of The Russian Constitution: A Contextual Analysis, told me in an email exchange:

[G]roup rights in this context are rights (and duties) for people because they are members of a particular group, not rights for the group as a single entity. There was little tradition of rights for individuals as individuals. [In] Soviet times, the theory was dependent rights: that individuals were given rights [primarily social and economic] in return for the duties they performed to the state - made explicit for example in the 1977 USSR Constitution Article 59.

Indeed no constitution had existed at all in Russia until 1906 - a result of the Russian Revolution of 1905 - and that was revoked in 1917. However, Alexander II - a reformist tsar who outlawed serfdom in 1861 - instituted several legal reforms, including the right to trial by jury with independent judges overseeing cases. These rights existed in Russia from 1864 until 1917, making Russia unique in that its judicial system was more democratic while the rest of its governmental institutions remained autocratic. As Professor Bill Bowring, an expert on Russian law at the School of Law at Birbeck College at the University of London, has pointed out, these legal rights only formally came into being in many other European countries at around the same time: "Russia has, like all its European neighbors, a long and complex relationship with human rights - and with the rule of law and judicial independence, which are its essential underpinning."

The current constitution of 1993 came about as a result of the dramatic showdown between then-president Boris Yeltsin and the parliament. Yeltsin had dissolved parliament after members of the legislature refused to continue to allow him to rule by decree and wanted to roll back the many harmful economic policies he had implemented during this period. They had also threatened to impeach Yeltsin for abuse of power. Yeltsin ultimately ordered a military attack on the parliament building, leading to hundreds of casualties. He then suspended the existing constitution.

In order to prevent any other center of political power from having the ability to confront or challenge the president again, Yeltsin engineered the design of a constitution that provided for a parliament that would be little more than a rubber stamp for the president's prerogatives. In Putin's January speech announcing that there would be constitutional changes, he suggested that the parliament would be granted more authority. However, upon closer inspection, the changes relating to the balance between the executive and legislative branches of government as they have now been finalized are barely perceptible. As Henderson explains [emphasis mine]:

[T]he idea of the President having direct oversight over certain key federal ministries (such as those dealing with defence, state security, internal affairs, justice, foreign affairs, emergency situations) was enshrined from the very beginning in article 32 of the 1997 Federal Constitutional Law on the Government.* This oversight is now specified at constitutional level in Article 83 (e-1). The State Duma [the lower chamber of parliament] now does have the power of approving ministers, except those in the key ministries just mentioned. Previously the Duma only had a hand in consenting to the Government Chairman (Prime Minister), under the original version of Article 103(1)(a). Now it also has power over approval of the Government Chairman's suggestions as to who should be the deputy chairman and the federal ministers [again, apart from those in the key federal ministries]. However, it is not clear the extent to which the Duma will review individual ministers, or whether it will merely be put in the position of approving the government as a whole.

Putin did emphasize as the constitutional amendments were being drawn up that Russia - due to its size and complex composition of different cultures and faiths - would have to be governed as a presidential republic and not a parliamentary republic:

"I think that Russia, with its vast territory, with many faiths, with a large number of nations, peoples, nationalities living in the country - you can't even count, someone says 160, someone 190, you know, needs strong presidential power."

He reiterated this idea in a speech at the Valdai conference in October.

The Judiciary

There were also amendments relating to the judicial branch of government. Since 2000, Putin has overseen the expansion of rights for those accused of crimes as well as introducing more organization within the everyday functioning of the system. Examples of the former include the rights of habeas corpus and trial by jury, and increased rights to exculpatory evidence. After certain reforms made by Putin to the criminal code, acquittal rates in bench trials (only heard by a judge) doubled and acquittal rates in jury trials tripled, contributing to a 40 percent drop in the overall incarceration rate and a 95 percent drop in the juvenile incarceration rate since 2001.

He also introduced the role of bailiffs and Justices of the Peace (JPs), improving the efficiency of the justice system. JPs are required to be over the age of 25, have a law degree, and pass an exam and a strict security clearance. They are formally appointed by either regional governors or regional legislative bodies. It has been established that JPs demonstrate independence - in other words, they base their decisions on the written law - in the vast majority of cases before them. Exceptions involve the very small percentage of cases that are politically sensitive, particularly to the Kremlin. In these instances the JPs will often go along with power as a matter of being socialized into the system rather than being overtly told to do so.

Henderson acknowledges that the professionalization of the Russian legal system seems to have improved in recent years, adding:

[T]here is now a credible group of human rights lawyers, that is lawyers whose profession is to defend human rights cases. This would have been unthinkable, I believe, in earlier eras. I also think particularly younger people - and especially educated young people - will take a different view to those in charge who are of an age which in other circumstances would mean they would be drawing their old-age pension.

But whether the constitutional amendments that involve changes to the judiciary will support the continued progressive evolution of the legal system or hamstring it is debatable.

In addition to the hierarchy of courts in which actual cases involving specific parties are litigated - similar to the US hierarchy with a Supreme Court at the top - many European countries have a court that is separate and apart, which has the sole objective of reviewing legislation for constitutionality. That court in Russia is known as the Constitutional Court. The recent amendments have granted the Constitutional Court the ability to review proposed legislation, not just legislation that has already been passed, for compatibility with the country's constitution.

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Natylie Baldwin is the author of The View from Moscow: Understanding Russia and U.S.-Russia Relations, available at Amazon. Her writing has appeared in Consortium News, RT, OpEd News, The Globe Post, Antiwar.com, The New York Journal of Books, (more...)
 

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