The Constitutionality of Vladimir Putin’s Third Term

Almost as soon as the election results declaring Vladimir Putin’s election were certified, Russia’s nascent opposition immediately challenged the results as illegitimate. The League of Voters, for instance, argued that the massive irregularities, use of administrative resources, and abuse of law discredited “the institutions of the Russian presidency, the Russian electoral system, and the entire Russian state.” The Putin regime has responded in part by stressing the importance of legality and constitutionality. First, it has reiterated its now-familiar refrain: If you have problems with the elections you should pursue these claims through the constitutionally-guaranteed judicial process. More importantly, on the day after the disputed presidential election, outgoing President Medvedev introduced a bill outlining the formation of a Constitutional Assembly that could redraft the Russian constitution. This bill – which Mr. Medvedev had promised to deliver after a February 20 meeting with the new, non-systemic opposition – will determine the rules for forming a Constitutional Assembly.

But is “constitutional reform” even worth discussing in a state like Russia? Yes. One of the most persistent myths about Russia is that the constitution is a meaningless document that has done little to constrain Mr. Putin’s relentless centralization of power. On the contrary, the Russian Constitution has done what it was intended to do: enable presidential power. In fact, contrary to popular belief, the rights outlined in the Russian constitution are not guaranteed by political pluralism or a strong judiciary (as they are in the West). Instead, these rights are “guaranteed” by the vast powers of the Russian president. To exercise these powers, the president operates above the system of executive, legislative, and judicial power. Mr. Putin’s centralization of political power therefore did not violate the Russian constitution; on the contrary, it finally allowed him to be the authoritarian guarantor of Russian democracy envisioned by the constitution!

The “Spirit” of the Russian Constitution

Russia’s authoritarian constitution presents a problem for democratic reformers. How can they argue that Mr. Putin’s rule is unconstitutional when he can simply point to the text of Russia’s authoritarian constitution? Mr. Putin’s third term is a prime example. Despite some people’s attempt to argue otherwise, Mr. Putin’s return to the presidency is clearly constitutional. Indeed, Article 81, Section 3 of the Russian constitution clearly states that: “One person may not hold the position of Russian president for more than two terms in a row.” By any canon of textual interpretation, this provision limits an individual from three or more consecutive terms and nothing more.

Left without any textual support for their arguments, some opposition members have begun to argue that Mr. Putin’s third term (and entire regime) violates the “spirit” of the law. Although this constitutional strategy began long before the December parliamentary elections, it has intensified since Mr. Putin’s fateful September 2011 announcement that he would be returning to power. Making this argument are a mix of opposition politicians – both old and new – and commentators who claim that the Russian constitution must be broadly interpreted to reflect the broad democratic values laid out in its opening chapters. Vladimir Ovsiannikov of the ill-named Liberal Democratic Party recently stated that Putin’s third term “violates the spirit of the constitution” because it undoubtedly conflicts with its “democratic principles”. Viktor Shudegov of the A Just Russia Party also commented that it would be necessary to rewrite the document to ensure that no individual can repeat Mr. Putin’s actions. Vladimir Pastukhov – a former advisor to the Russian Constitutional Court – argued late last year that the “spirit” of the Russian constitution should prevail over the letter of the law and therefore Mr. Putin’s third term is illegitimate (if not formally unconstitutional). Finally, there is evidence that the Russian people are uncomfortable with Mr. Putin’s third term. A recent Levada Center poll suggests that 57 percent of Russians think that one person should be limited to two presidential terms in total.

The Zorkin Doctrine

The Putin regime’s chief legal pamphleteer and chairman of the Russian Constitutional Court, Valery Zorkin, has led a withering attack on this concept of the “spirit” of the constitution. In a series of articles and speeches spanning the last decade, Mr. Zorkin argues that judges and politicians who stray from the text of the constitution and appeal to “higher law” in understanding the document are endangering the construction of a true rule of law in Russia. For Mr. Zorkin – Russia’s answer to Justice Scalia – situating the “spirit” of the constitution in “transcendental” democratic values is dangerous: “You sit behind your desk, surrounded by legal literature and hoping to create the ideal constitution. But beyond those windows and walls where you have your dreams, passions rage and real life seethes. . . . If you do not consider the laws of this struggle, the historical tradition, and the content of this social progress, at best your legal creation, no matter how perfect it may be, will be a barren utopia. At worst, it is the road to a hell of real chaos, boasting an amoral dictatorship that neglects any legal norms.”

Mr. Zorkin also argues that in the rare times that a judge is required to depart from the text of the constitution and look to outside values, this extra-textual quest should be drawn as much from Russia’s unique history and heritage as from universal democratic values. This uniquely Russian context – what he calls Russia’s “fundamental reality” – necessarily includes “authoritarian elements” that can ensure Russia’s stable “transition” from “a lawless past to a new democracy.” Mr. Zorkin’s view is broadly influential amongst many members of the Constitutional Court. In fact, recent court opinions have upheld pro-government legislation in part based on the fact that Russia was at a stage in its democratic development where a strong president is required.

Redrafting Russia’s Authoritarian Constitution

Mr. Zorkin’s argument reveals a significant problem for those hoping for a more democratic interpretation of the Russian constitution: their arguments are unhinged from the text and are, therefore, political arguments unenforceable in court. A constitutional assembly, however, offers the democratic opposition an opportunity to redraft the text of Russia’s authoritarian constitution. Although this process of textual redrafting is likely to be slow and full of unsatisfying compromises, it has the potential to turn questions of presidential administrative domination into judicial questions and enable the gradual, nonviolent political change demanded by the opposition.

Constitutional reform is not unprecedented in Russian history. In the late Tsarist period and the early 1990s, constitutional debate was at the forefront of Russian politics. These debates were short circuited by unstable political environments and violent coup d’etats. Russia’s current economic and political situation is now, by contrast, far more stable; perhaps now is the time for a serious constitutional debate about the future of Russia’s political system.