The Arushokov case calls attention to this problem with regard to the Federation Council, he continues; and the situation that body finds itself constitutionally and legally is so undefined that since his arrest, a number of people have called for the disbandment of that upper chamber of the parliament entirely.
“One can understand these emotions,” Shaburov says. “The Federation Council for a long time already has been viewed as an organ to which typically are dispatched retired governors of siloviki, that is, as something like a club of political pensioners.” But if things were quiet there in the past, now they very much aren’t.
The body has enormous powers at least on paper – it must agree to the imposition of martial law, it has to approve the dispatch of military forces abroad, it names the procurator general and the judges of the Constitutional Court, and it would be the place where a trial would be held if the president were impeached.
But despite these enormous powers, the 1993 Constitution does not specify how its members are to be chosen. Instead, the authors of that document kicked the can down the road and allowed for the parliament to decide that question. As a result, the Federation Council has gone through several stages, and there is nothing to prevent that from happening again.
If this were true only of the Federation Council, that would be one thing, Shaburov says. But it is true of many aspects of the basic law. Indeed, it is “one of the essential defects of thee Russian Constitution.” It is so poorly written that the powers that be can change the system and still claim to be operating within its provisions.
In short, the Russian basic law is not really a constitution that provides a framework for other laws, limiting what can be done by law. Instead, it constitutes an invitation for legal changes that subvert the overall intentions of the Constitution and open the door to the most dangerous forms of revision without any constitutional sanction.