Staunton, March 15 – Russia is experiencing “the end of an era” in which civil society gave the impression that its country had a constitution and the powers that be “conducted themselves as if it didn’t, Vladimir Pastukhov says. Now, Vladimir Putin is bringing the document into correspondence with practice and making “the Constitution unconstitutional.”
It is clear, the London-based Russian scholar says, that Putin took this action now in order to avoid becoming “a lame duck.” To the extent that is the case, the Kremlin leader’s moves are “not so much strategic as tactical” and give him the chance to decide on his own what to do in 2024 (mbk-news.appspot.com/sences/chto-takoe-konstitucionnaya-dyra/).
But the way he has done so has cost Russians their Constitution, a document that they knew was not much respected by those in power now but that they hoped would be at some future point. Now by the crude and even clumsy way that Putin has treated it, they can see that they do not have a constitution at all.
“The chief result of this constitutional adventure will become the absolute and irreversible delegitimization of power in 2024 if Putin really makes use of Tereshkov’s amendment.” This will not be political but profoundly “juridical” because what he has done to the constitution doesn’t change it sufficiently to “zero out” his terms.
Pastukhov says there are three reasons for that conclusion. First, the current amendments to the extent that they contradict the first and second sections of the Constitution do not have any legal force because they are not being adopted in a way that permits the modification of that “constitution within a constitution.”
Second, despite their number, the new amendments do not provide the basis for treating the Constitution “as a new Constitution.” They are no more than the changes Putin has already introduced de facto in Russian practice and thus do not justify the “zeroing out” of presidential terms which appears to have been the main point of this exercise.
And third, “there in general is no link between the renewal even real [of the Constitution] and the zeroing out of presidential terms.” No principle of constitutional law requires this, whatever Putin and his supporters say. This is just the latest trick, like shifting offices with Medvedev. But it is especially dangerous because it can be repeated again and again.
“The problem,” Pastukhov says, “is not in the number of terms. Putin will remain in power as long as God above allows by his methods or society below permits him to stay by its … But the method chosen by him for the resolution of this specific political problem is extremely toxic.”
Putin has inflicted “a horrific shock” to Russian constitutional legal consciousness. The harm is not in the extension of terms but in the black hole of legal constitutional nihilism in which we have all landed. Putin will leave but Putinism will remain in our heads. And that means that we must struggle not with Putin but with Putnism.”
“We must immediately find a needle with the help of which we can darn up the constitutional hole that has been formed.” What should be done? Pastukhov suggests that in this situation, the Russian legal community has a special responsibility to make clear to all what has happened.
“Not in order to win, but in the name of truth, justice and law.”