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January 27, 2020 Special Dispatch No. 8523

Political Scientist Komin: New Constitutional Amendments Will Strengthen, Not Weaken, The Russian Presidency

January 27, 2020
Russia | Special Dispatch No. 8523

Since Vladimir Putin's January 15, 2020 address to the Federal Assembly, announcing constitutional amendments that are currently being rushed through the legislature, the general consensus has been that Putin intends to weaken the presidency. As he is eliminating the loophole of two terms "in a row" for presidential terms, a loophole that allowed him to install Dmitry Medvedev as president in 2008 and succeed him in 2012, he is slated to leave office in 2024. Therefore, the assumption was that Putin's successor would not enjoy expanded powers, and that perhaps Putin will continue to run things from a different base such as the State Council whose powers would be strengthened, while the Russian presidency would become less imperial.

Political scientist Mikhail Komin, of the St. Petersburg Higher School of Economics and research director of the Center for Advanced Governance makes a strong case that the amendments, far from weakening the presidency are making it even more powerful at the expense of the legislative and executive branches. This however begs the question of why Putin should put himself and his legacy at the mercy of a succesor with further expanded powers?

Komin's analysis follows below:[1]


Mikhail Komin (Source: International.gaidarfund.ru)

"The vague formulation in the constitutional amendments has created unrealistic expectations among many experts about an impending redistribution of powers and reinforced balance between government bodies. The bill unanimously adopted yesterday in its first reading by the State Duma showed that the euphoria was premature: the president’s power not only is not being weakened, but it is also seriously intensifying. Here are five major constitutional changes that will make this happen.

"1. A Still Further Weakening Of The Prime Minister.

"The loud announcements notwithstanding, the situation with the appointment of the Prime Minister will not actually change in the proposed amendments to the Constitution. As before, only the president will be able to submit the candidacy of the prime minister to the Duma, while he retains the right to dismiss the prime minister; the mandatory replacement of the prime minister will be the same as now – following the presidential election, and not parliamentary elections.

"Replacing the wording of the State Duma’s participation in the appointment of the prime minister - from “grants consent” to “affirms - will not change anything in the procedure itself. Already, the Duma "grant of consent" was interpreted as an obligatory vote by the deputies for the candidate proposed by the president - for example, this is exactly what happened a few days ago with Mikhail Mishustin. The same vote is most likely implied by the wording “affirms”.

"Additionally, part 4 of Art. 111, thanks to which the State Duma can de facto only but agree (and, therefore, in the new wording – can only 'but affirm') the candidacy of the Prime Minister as proposed by the President. If the State Duma thrice rejects the prime minister’s candidacy, the president will still be able to appoint him, while dismissing the State Duma itself.

"This clause of the Constitution renders participation by the lower house of parliament in managing the future Cabinet of Ministers a pure formality.

"Simultaneously, the proposed amendments introduced further weaken the already not overly extensive prime ministerial powers.

"Firstly, whereas previously the prime minister could independently, under the Constitution, form a team of vice prime ministers and ministers, now the State Duma will approve the candidates for these posts. This means that, in addition to considering the demands by the president on the government's composition (after all, the president, if something goes wrong, can dismiss the prime minister and his ministers to resign), the head of the cabinet will have to take into account the position of the deputies.

"Secondly, the new amendments contain a clarification to paragraph b) of Art. 83, to the effect that if the prime minister resigns, his successor as the new prime minister will be unable able to change the structure of federal institutions, for example, to eliminate or create a new ministry, introduce a new post of deputy prime minister or redistribute powers between them. In fact, this will compel such a prime minister to operate exclusively according to the rules and vectors of his predecessor.

"Thirdly, that same paragraph b) of Art. 83 to the draft amendments contains a vague formulation of the president's powers, conferring upon him, rather than the prime minister, the right to determine 'the bodies to be supervised by the President of the Russian Federation and the organs to be supervised by the government of the Russian Federation'.

"All ministries and departments are currently divided into conditionally “presidential”, whose head is appointed by the president, and “prime ministerial”, whose head is appointed by the prime minister. The border between these types of ministries has hitherto been enshrined in the Constitution. The new wording will de facto give the president the opportunity to assume leadership over some of the conditionally "prime ministerial" ministries or agencies , as well as make changes to the structure of federal authorities, bypassing even formal agreement with the government.

"2. Control Over The Judiciary.

"Under the new amendments, the president will have the right to propose to the Federation Council the idea of ​​terminating the powers of judges of the Constitutional, Supreme, Cassation and Appeal Courts with extremely vague wording 'in the event they commit an act defaming the honor and dignity of a judge, as well as in other cases provided by federal constitutional law, attesting to the judge's incapability to exercise his powers'.

"While maintaining the current model for the formation of the Federation Council - when 2 representatives from a region become senators - any mention of the coordination or consultations of the president with the Federation Council is nothing more than a formality. As paragraph d) of article 19... is in operation, stipulating that the chief of state has the right to dismiss the [region's] governor at any time, the president may also retain control over the composition of senators nominated from the region.

"The chief of state's acquisition of the right to remove all judges from office "finalizes" their dependence on the president and his administration.

"If previously, for example, the head of the Constitutional Court began to worry about his position only at the end of his term of office, after which he might not be reappointed at the president’s behest, then now we have situation where a constant threat of dismissal hangs over him and the same constant loyalty check. Now, following a similar pattern, the president will control each judge of the Constitutional, Supreme Courts and even the presidents of the constituent courts.

"3. The Weakening Of The Personnel Vertical Of The Prosecutor General.

"Under the new amendments, the Federation Council will formally be able to participate in yet another procedure - holding consultations with the president on the appointment of heads of presidential ministries and law enforcement agencies. The consultation mechanism is a vague wording, from which only one thing is clear: the president will definitely decide on the nomination and removal of candidates.

"And if the situation does not change in the case of the appointment of the defense minister or FSB director, then in the case of regional prosecutors, the president will de facto remove the right from the prosecutor general.

"Currently the prosecutor general takes office by the president's decision, but represents his representatives in the federal entities himself. The mechanism for coordinating candidates with the regional parliament, laid down in the 1993 Constitution, has been emasculated in practice in recent years: the prosecutor’s office confronted the fait accompli of the federal entity presenting a candidate approved by the president. However, with the gradual loss of powers in criminal prosecution, control over personnel at the regional level remained an important tool for the prosecutor general in his competition with other security agencies. The constitutional amendments remove these capacities from the prosecutor general and award the president the capacity to nominate candidates with the unclear and probably insignificant participation of the Federation Council in the consultation.

"4. The Right To Intervene In The Legislative Process At Any Level.

"Amendments to Article 125 give the Constitutional Court the right to verify the legality of any legal or regulatory act adopted in Russia: from regional laws to acts ratifying international treaties. Such a test of constitutionality can now be initiated only by the president: upon his appeal, the Constitutional Court will begin its work.

"Taking into account the emerging opportunity for the head of state to dismiss the Constitutional Court's judges, talk of judicial autonomy in such decisions is superfluous.

"At the same time, the capacity to declare unconstitutional any norm that has been created and is being prepared for adoption on the territory of Russia potentially gives the president powerful tools to control, primarily regional initiatives - from the introduction of additional taxes to the suppression of separatist sentiments.

"5. The President's Veto Is Becoming Unsurmountable

"The same amendments that enlarge the Constitutional Court's functions create another important advantage for the president, especially in a political crisis situation: his veto will be impossible to overcome.

"In the current situation, the parliament has a theoretical opportunity to insist on the adoption and publication of the law, even if the president is unprepared to sign it. To achieve this, the deputies and senators have to collect at least two-thirds of the votes of the State Duma and the Federation Council, respectively. If this was to occur, the president will be obligated to sign the law.

"In the new amendments, the president gets the opportunity to send a law that he is unwilling to sign to the Constitutional Court requesting it to verify the procedure. A court loyal to the president can find problems in the bill promoted by the deputies, declare it unconstitutional, and then the president simply returns the law to parliament without his signature.

"Such an 'intervening layer', in the form of a Constitutional Court decision, empowers the president with the so-called. 'technical' veto - when the president does not directly block the initiative, but it will be impossible to carry it out.

"It is important that the president will be granted such an option in both the case of ordinary federal laws and federal constitutional laws, namely, special legal norms that determine the powers and functions of key institutions, from the government to the Constitutional Court itself.

"Amidst the background of such a significant expansion of presidential powers, an amendment that removes the word 'in a row' from Article 81 of the Constitution, that blocks Vladimir Putin's final opportunity to stay on as president, does not appear straightforward.

"If a new figure should definitely become the president, why strengthen him to such an extent?

"Perhaps Vladimir Putin believes that the transfer will not be easy, and the new president may need additional leverage and tools via which he can protect the legacy of the current head of state. But then the question is: why in a situation of virtually unlimited power, should the successor remain true to such agreements?"

 

[1] Novayagazeta.ru, January 24, 2020.

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