Constitution and constitutionalism in Russia

Constitution is the text of a country’s fundamental law, whilst constitutionalism refers to what results from such a document: the strength of the rule of law, the quality of governance, and the actual degree to which fundamental rights are respected and protected.

The Russian Constitution was drafted in 1993 by a constitutional conference inspired by constitutionalist Sergei Sergeyevich Alexeyev. It was put to a vote and garnered 58.43% votes in its favour, short of a two-third majority that most constitution-making processes would aspire. The Constitution entered into force on 25 December 1993, a mere 26 months after the demise (and even formal outlawing) of the Communist Party of the Soviet Union (CPSU), on 29 August 1991.

The 1993 Constitution entrenched Russia’s choice to embrace West European liberal constitutionalism. In many aspects, it is more progressive than its French, German and US American models. Justice, from being an instrument of the political prerogative of an avantgarde communist party, became an independent guarantor of individual rights. In the established case law of the Russian Constitutional Court, the equality clause in article 19 requires the legislature to make laws certain, clear and unambiguous, in order for them to be capable of being applied an a uniform and consistent and therefore equal manner. 

To rule that vague and ambiguous legal rules open the door for arbitrariness and thereby violations of equality, is evidence of a sophisticated and exemplary defence of fundamental rights and constitutionalism that many so-called Western countries have not yet attained.

Art 22(2) of the Russian constitution gives a far stronger guarantee than what is available to South Africans, namely:  2. Arrest, detention and remanding in custody shall be allowed only by court decision. Without the court's decision a person may be detained for a term more than 48 hours.

Art 15(4) entrenches what is probably the most generous incorporation of international law ever: “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.”

Art 23(2) has the clarity that we miss in many countries, especially in South Africa: 2. Everyone shall have the right to privacy of correspondence, of telephone conversations, postal, telegraph and other messages. Limitations of this right shall be allowed only by court decision.

Russophobic cynics will argue that all this is meaningless, as constitutional reality in Russia would have allowed opposite practices to become entrenched. But these accusations are anecdotal and grounded in McCarthy type, cold war propaganda. Human rights abuses around the World, including in the other BRICS countries, are far more prevalent than those observed in Russia. 

So, what are the Russian July 2020 constitutional amendments about? 

Firstly, provisions to guarantee a living wage pension, indexed to be adjusted to consumer price increases. Secondly, firmer and more substantive guarantees for access to effective and high-quality health care. Third, the strengthening of cultural rights of education and the protection of the family as the foundation of society. 

Russia as a social welfare state has overtaken many countries in the EU and the grim reality of mass poverty in the US. Russia has a very low inequality index of 37.5 GINI, against, for instance, 0.63 GINI for South Africa.

The other group of important 2020 reforms are designed to strengthen the role of the Federal government in the support of scientific and technical development, public safety and security, information technologies agriculture.

An important amendment to effectively fight corruption and international money laundering is a new provision prohibiting all persons holding any public office from opening or holding bank accounts or deposits in foreign banks. In Africa, funds in excess of all foreign development aid, are held by African government officials in European and other offshore accounts, depriving African nations of their right to development. This illustrates how topical and relevant this 2020 constitutional reform is in Russia. 

The amendment standing out in the international media concerns the provision made for the President. Firstly, the new provisions demand that a candidate for President of the Russian Federation must be a citizen of the Russian Federation permanently residing in the Russian Federation for at least 25 years, who is not and has not been a citizen of a foreign country or held a residency permit or other document enabling its holder to permanently reside in a foreign country.

Secondly, the 2020 amendment repeats the term-limitation rule that a President cannot serve for more than two terms. But it also rules that the term-limitation provision shall apply to the President in office discounting the number of terms already served.

Great numbers self-proclaimed Russia experts were quick to accuse Putin of wanting to imitate his Chinese counterpart in aspiring a “life-long” position of president. 

It is not unusual for the “term-clock” to be reset with a constitutional amendment. There are many examples of countries where presidents were allowed to do a further two terms, after completion of an original two or more terms. Examples in point In Africa are Angola and Mozambique, after their constitutional reforms in January 2010 and November 1990, respectively. It is debatable, whether a strict term limitation is always the best guarantee for good governance. In many instances, it will merely enforce rule by mediocracy, rotating one weak compromise candidate after another. 

Many leading nations, such as the UK and Germany do not enforce term limitations. Mrs Merkel has been a successful head of her country for more than 14 years already. Paul Kagame, President of Africa’s leading nation, has been in office for 25 years. President Geingob of Namibia, 20 years. President Loong of Singapore, 16 years. Prime Minister Netanyahu of Israel 14 years; to name just a few.

In the case of Russia, President Vladimir Putin remarked in an interview that the current time of severe crisis in the World, is not a good moment to embroil the nation in a two or more years quarrel and dividing quest for finding and electing a new leader. The Russian voters supported him, voting on 1 July 2020 with 77.92% in favour of the constitutional amendment, with a high voter turnout of 67.97%. Nobody has been able the question the veracity of the count on any factual basis. It is clear that the 2020 vote produced the two-thirds majority that was lacking in 1993.

The 2020 constitutional amendment brings about other important adjustments to the system of government. It creates a new Federation Council. The new organ will rebalance the checks and balances and function as a counterweight to some increased powers of the President in regard to the executive and in the legislative process as well as in the procedures for the appointment and removal of the Prosecutor General and judges.

The renewed Constitution of Russia has recalibrated Russia’s constitutionalism. Russian voters have an abhorrence of the political instability and party-political trench wars, corruption and decay of public services, as they knew it under Yeltsin. This has once more been expressed in the overwhelming vote in favour of Putin’s law. No fair-minded person can deny respecting the overwhelming choice of the Russian people.

* Dr André Thomashausen is Professor emeritus (Unisa), Attorney at Law (Germany)

* The views expressed here don't necessarily reflect that of IOL.