Monday, January 20, 2020

Putin’s Constitutional Working Group Likely Unconstitutional, Pastukhov Says

Paul Goble

            Staunton, January 17 – The 1993 Russian Constitution requires that if fundamental changes to the two main chapters of that document are to be considered, the one establishing the general arrangement of the state and the second human rights, a Constitutional Assembly must be convened, Vladimir Pastukhov says.

            That unusual arrangement was introduced by the basic law’s drafters to make it far more difficult for any future Russian regime to retreat from the commitment to transform Russia into a European state with divisions of powers and guarantees of fundamental human rights, the London-based Russian scholar continues (

            But despite giving this Assembly such an important role, the 1993 document did not specify what it would look like; and “over 27 years of the life of the Constitution neither the Yeltsin nor the Putin regime found time to issue a corresponding constitutional law,” the only place where the constitution required one but that the political system did not take that step.

            That had not been an issue in the past, but now Putin wants to change the constitution and has chosen to form what he calls “a working group” to draft the changes.  If the changes go beyond technical adjustments and affect the two articles the constitution requires a Constitutional Assembly for, that could result in “an unconstitutional Constitution,” Pastukhov points out.

            That is because “Putin has for some reason parodied the mechanism of a Constitutional Assembly” by among other things suggesting its conclusions will be subject to a national referendum “but despite that not convened a Constitutional Assembly” but only an ill-defined “working group.”

            This creates “a strange dilemma,” Pastukhov says. “If the proposed amendments do not touch on the basic principles of the Constitution and do not affect human rights, then the measures proposed by Putin are completely unnecessary … but if they do,” the procedure he has put in place doesn’t correspond to the Constitution.

            That is because “a chicken is not a bird and a working group is not a Constitutional Assembly.” It would be easier to make this case if there were a law defining exactly what a Constitutional Assembly must look like, but that is lacking. Nonetheless, the issue of which amendments require one and which don’t makes this anything but a trivial issue.

            It would seem clear that changing the Constitution in fundamental ways would require a Constitutional Assembly that would include a broad swath of representatives of all strata of society including the members of the current parliament and open the way for a broad discussion of these issues by the entire population, Pastukhov says.

            “It is quite obvious” that the working group Putin has created consisting of “Senator Klishas and his friends” does not correspond to even one of these criteria. And that alone raises serious concerns that Putin’s initiative about constitutional change is fundamentally unconstitutional.

            That may or may not create problems for the present-day Russian political system in the short term, but going forward, such actions have the potential to deprive the Russian state of a constitutional basis, thus making it more rather than less likely that extra-constitutional and even extra-systemic actions will occur.

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