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Putin is shaking up the constitution and there were reports suggesting that the process, as well as the amendments themselves, are probably unlawful/illegal despite the Constitutional Court's ruling stating otherwise. Speaking strictly from a legal standpoint, what can be said on the issue?

Sergey Zolotarev
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    If you do not accept the courts authority, what kind of answer would you expect? By ruling it constitutional, the highest authority has said it is legal, so I am not sure what you are looking for. – Polygnome Mar 24 '20 at 08:03
  • Why would it be illegal to hold a referendum about changing the constitution? That's the most democratic way of changing it. – dan-klasson Mar 24 '20 at 15:25
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    @dan-klasson it would be illegal if the constitution does not provide for such a mechanism of amendment, or if it does provide for one but the referendum were not carried out in accordance with those provisions. – phoog Mar 24 '20 at 15:55
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    Spare for the process itself, the only way an ammendment to the constitution can be unconstitutional is to make the constitution self-contradictory. The Constitution itself does not provide any limits on what kind of changes can be made, it only requires a certain process to be followed. The Constitution (at least, in Russia) is supperior to any other law and if some other law gets incompatible with the Constitution, it is the other law that loses power or needs to be changed, not the Constitution. The same holds if the Constitution is changed first and not the other law. – fraxinus Mar 24 '20 at 15:57
  • @dan-klasson the Constitution of Russia doesn't allow for a referendum-approved changes (and AFAIK it never did in the past). – fraxinus Mar 24 '20 at 16:04
  • @fraxinus Do you have a source? – dan-klasson Mar 24 '20 at 16:11
  • @dan-klasson see here: https://www.constitution.ru (English translation available, Chapter 9 for changes) – fraxinus Mar 24 '20 at 16:13
  • @fraxinus page not loading for me – dan-klasson Mar 24 '20 at 16:15
  • Sorry, try http://constitution.ru/ (no HTTPS) – fraxinus Mar 24 '20 at 16:16
  • "3. The Constitutional Assembly shall either confirm the invariability of the Constitution of the Russian Federation or draft a new Constitution of the Russian Federation, which shall be adopted by the Constitutional Assembly by two thirds of the total number of its members or submitted to a referendum." That's pretty clear no? – dan-klasson Mar 24 '20 at 16:20
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    @dan-klasson The devil is in the details. The constitution defines the term “referendum”, including a strict process that a referendum must follow. In particular, 50% of the population must participate for it to be valid. The 2020 constitution amendments never mention any referendum, just a “nationwide vote”. – Roman Odaisky Mar 24 '20 at 17:55
  • @RomanOdaisky You have any source for that? Whatever you call it, it's clearly a referendum. – dan-klasson Mar 24 '20 at 19:59
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    @dan-klasson Law doesn’t work that way, exact terms matter. Federal Constitutional Law 5-FKZ defines what referendum is (using the term всенародное голосование) and how exactly it must be held. The new law 1-FKZ carefully avoids both aforementioned terms and uses a different process. The constitution is clear about changes to itself: either a law duly enacted or a referendum, nothing else. – Roman Odaisky Mar 24 '20 at 21:09
  • @RomanOdaisky Yes, the rules for the referendum are clearly stated there. Can you please provide me with how they violate those rules there in the planned referendum? – dan-klasson Mar 24 '20 at 22:17
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    @dan-klasson There is no referendum planned, that’s the entire point. The new constitution is already in force (article 136) and the upcoming vote doesn’t matter. The vote not being a referendum doesn’t change much. – Roman Odaisky Mar 24 '20 at 22:46
  • @RomanOdaisky So why then are you saying the devil's in the detail? Perhaps from a legal point of view they are free to go ahead and change but won't until a majority of Russians have voted yes. – dan-klasson Mar 24 '20 at 22:52
  • @dan-klasson I responded to your question that was specifically about the referendum, hopefully my answers were informative enough. As to your most recent statement, it does not reflect reality as they have already fulfilled every legal condition so regardless of the vote, the new constitution is already in force. – Roman Odaisky Mar 24 '20 at 23:08
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    @Polygnome What? Are not there countries with dysfunctional judiciary? Do you think that law cannot be interpreted independently from existing dysfunctional courts? --- In Russia: judicial independence is at least very questionable, there is evidence of strong influence of the state propaganda - self-censorship, strong suppression of the political opposition etc. – pabouk - Ukraine stay strong Mar 24 '22 at 13:57
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    @pabouk-Ukrainestaystrong What anyone things about the legality is irrelevant. if the highest court says its legal, its legal, despite what everyone else might think. And it stays legal until another decision is taken rendering that verdict moot. I am very well aware that courts might not be independent and declare stuff legal that probably shouldn't be, but that is a question of right and wrong, not legal and illegal. You are absolutely right with your assessment of Russias legal system -- but that doesn't matter. Legal != right, illegal != wrong. – Polygnome Mar 25 '22 at 09:40

3 Answers3

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Speaking strictly from a legal standpoint, what can be said on the issue?

Strictly speaking, the Constitutional Court is the top authority on the legality of anything. One can speculate as much as they want on whether the Court was biased, pre-determined, corrupt, defiant, flagrantly blatant or ridiculously unjust. These speculations would be pure politics. They do not change the fact that whatever the Court has decided is legal just by definition.

Greendrake
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    The court does not rule randomly, or is not supposed to do so. When declaring that a law is legal it will provide legal arguments based on the text of the Constitution. Such arguments, as well as the ones from opposing views, would provide an answer to OP. If I understand correctly OP is not asking who rules the constitutionality but what are the arguments to declare the changes legal or not, preferably with citations to the constitution parts which enable/disable such changes. – Anonymous Coward Mar 24 '20 at 12:08
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    This is "strictly speaking" the correct answer. A constitution means what its interpreting judiciary says it means. However, the "pure politics" label doesn't make much sense here, because the process we are talking about is also pure politics. Those judges aren't picked by Jesus. – T.E.D. Mar 24 '20 at 21:24
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    @T.E.D. The point is that there is Politics.SE. "Keep flies and cutlets separate" like Russians say. – Greendrake Mar 24 '20 at 21:50
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    @Greendrake - That's a very good point. – T.E.D. Mar 24 '20 at 22:19
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    @AnonymousCoward I don't agree. OP effectively is questioning who rules the constitutionality: "probably unlawful/illegal despite the Constitutional Court's ruling stating otherwise". The only way it could be illegal despite the court's ruling is if you dispute the jurisdiction of the court. – JBentley Mar 25 '20 at 22:58
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    @JBentley An obvious way it could be illegal without disputing the jurisdiction of the court is if a future ruling of the court rules the previous ruling illegal. The arguments for or against such future ruling are the same arguments I mentioned before, and is what I think OP asks for, though only OP can clarify if indeed that is what OP means. Such arguments are legal, not politic, arguments. In example the one in dan-klasson's answer. – Anonymous Coward Mar 26 '20 at 09:51
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    @AnonymousCoward the fact that the court could change their mind in the future is irrelevant. The OP asked "Are Putin's constitution amendments legal?" and "Speaking strictly from a legal standpoint, what can be said on the issue?" . The answer is straightforward: if the highest court in the land says it is, it is -- that's all there is to it. They are the authority on the subject "what is legal". – eps Mar 26 '20 at 20:36
  • Also, the whole question of whether there is a difference between legal and political arguments is a hotly debated rabbit-hole of a topic. There are many legal scholars who argue that the courts are just as political as any other branch, even if they dress it up to look different. – eps Mar 26 '20 at 20:39
  • @ted If the highest court has provided the ruling without arguments then I'd have to agree with you. But I doubt that is the case. If they have presented said arguments along with the ruling, as is usual in legal systems I know, then citing said arguments would greatly improve this answer. Said arguments by the court belong to "Speaking strictly from a legal standpoint, what can be said on the issue?". I can't confirm myself since I don't know russian though. – Anonymous Coward Mar 27 '20 at 09:15
  • What you're suggesting is that a constitutional court cannot make an illegal/unlawful decision by definition. You are distorting the real legal picture, in my opinion – Sergey Zolotarev Apr 01 '20 at 13:29
  • @SergeyZolotarev That's simply how legal systems work. Perhaps what you really wanted to ask was whether the legal articulation/justification used by the court was just/right/fair/sensible/reasonable/sound etc. That is no synonym to "legal", and that question would be rather difficult to shape to fit this site (as opposed to Politics.SE). – Greendrake Apr 01 '20 at 14:05
  • I guess the latest annexations were legal too? – Sergey Zolotarev Oct 17 '22 at 02:20
  • @SergeyZolotarev You seem to be overvaluing the meaning of "legal". Ultimately, it simply means whatever the current people in power say it is, hence the meaning is transient. The next people in power could just declare the entire tenure of the previous ones illegal (together with everything they did — starting from the 1999 apartment bombings), and it will then indeed cease to be legal just by the definition of legal. – Greendrake Nov 05 '22 at 14:04
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I don't know what reports are claiming it's "probably unlawful/illegal" and why when the Russian constitution states:

  1. The Constitutional Assembly shall either confirm the invariability of the Constitution of the Russian Federation or draft a new Constitution of the Russian Federation, which shall be adopted by the Constitutional Assembly by two thirds of the total number of its members or submitted to a referendum. In case of a referendum the Constitution of the Russian Federation shall be considered adopted, if over half of the voters who came to the polls supported it and under the condition that over half of the electorate participated in the referendum.

(emphasize mine)

dan-klasson
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    It's probably worth emphasising the other part of the "or" clause - "adopted [..] by two thirds of the total number of its members" because this part (approved by 2/3 of the federation members) has already happened, validating the changes, and the referendum has not happened and is not necessary since the other half of the "or" is sufficient for the changes. – Peteris Mar 24 '20 at 20:29
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    You quoted the wrong article by the way. Article 135 that you quoted deals with amendments to chapters 1, 2 and/or 9, which are not currently being amended. The relevant article is 136. – Roman Odaisky Mar 24 '20 at 21:13
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    @RomanOdaisky No I didn't. Point 3 of article 135 does not mention anything about any chapters. It clearly states draft a new Constitution of the Russian Federation. That's not amending the constitution. That's drafting a completely new one. Hence why a 2/3 majority or referendum is required. – dan-klasson Mar 24 '20 at 22:14
  • @Peteris I wasn't aware of that. If you have a source I'll gladly amend my answer. – dan-klasson Mar 24 '20 at 22:25
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    @dan-klasson here are some sources (in Russian, though) regarding the voting in the parliaments of federation members during 12-13 March. https://www.bbc.com/russian/news-51868944 https://zona.media/number/2020/03/12/protiv . The country-wide voting that will be held is not technically a referendum according to 135.3 of constitution, it's essentially a consultative vote for PR reasons prescribed by the new legislation implementing these amedments. From constitutional perspective, the amendments now can come into force whenever Putin signs them, as all the approvals have already been done. – Peteris Mar 24 '20 at 22:55
  • Chapters 1, 2 and 9 are relatively immutable and can only be amended by the process outlined in article 135. Chapters 3 to 8 are variable and can be amended by the process in article 136. The 2020 process was a roundabout law involving the Constitutional Court and the vote, none of which are prescribed by the constitution, but generally along the lines of article 136; there has not been any Constitutional Assembly that article 135 refers to. – Roman Odaisky Mar 24 '20 at 22:57
  • @Peteris Putin has signed it on 14.03.2020 (having promised before not to do so until the vote). Not that his signature matters, regional parliament approval is enough by constitution. – Roman Odaisky Mar 24 '20 at 23:03
  • @Peteris That's about the amendments that resets the "counter" making Putin being able to run for two more terms. – dan-klasson Mar 24 '20 at 23:12
  • @RomanOdaisky And why did only one senator vote against it? – dan-klasson Mar 24 '20 at 23:13
  • @dan-klasson That’s obviously a political question so politics.SE material. – Roman Odaisky Mar 24 '20 at 23:15
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The entire procedure for amending the Basic Law of the Russian Federation in all its components is unlawful and does not comply with the current Constitution, neither in content nor in form. The content of Putin's amendments undoubtedly affects subjects directly related to Chapters 1 and 2 of the Constitution, which should be amended in a completely different order, and requires the convening of a Constitutional Assembly. The 1998 Law on the Procedure for the Adoption and Entry into Force of Amendments to the Russian Constitution requires that a justification be provided for the necessity of each constitutional amendment. This is not the case: the explanatory note to the draft outlines the content of the amendments themselves, but does not explain the reasons and purpose for the amendments. With the amendments, Putin is trying to solve his main problem - the removability of power. The new Constitution allows him to rule until 2036. Putin's amendments in Chapters 3 to 8 deal with fundamentally different topics: the powers and competencies of government bodies, the composition of government bodies, local self-government, international law, the social sphere, and the rights of citizens. However, the 1998 law On the Procedure for Adoption and Entry into Force of Amendments to the Constitution of the Russian Federation expressly prohibits making different and differently directed amendments to the Constitution through the mechanism of a single amendment. It establishes that only "interrelated changes to the constitutional text" may be covered by a single law of the Russian Federation on amendments to the Constitution.

Lena
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