Almost 70% of 4175 users of Novayagazeta.Ru think, Vladimir Putin couldn't save his power till 2024. 10% say they don't care...
Doctor of Law
St Antony’s College, University of Oxford
I would like to pour a spoonful of legal tar in the barrel of political honey presented at the United Russia party congress. To paraphrase Hegel: not all that is politically possible is legally valid.
For some reason, people think that Vladimir Putin’s third term is entirely constitutional as long as there is a gap between the second and third terms in the form of Dmitry Medvedev’s single term. As if this one interim term totally alters the political and legal reality.
Things aren’t so clear cut here. Indeed, one gets such an impression from a direct reading of Part 3, Article 81 of the Russian Constitution: “The same person may not hold the position of President of the Russian Federation for more than two consecutive terms”. Proponents of a third term interpret this provision literally, in the sense that a third term is legal as long as it doesn’t happen immediately the first two.
The problem is that the Russian Constitution, like any other law, not only has a “letter” but a “spirit” as well. And in this tandem of the “letter” and “spirit” of the law, the “spirit” is dominant. Just like in the tandem of Putin and Medvedev: it doesn’t matter who is officially the most important, what matters is who is in charge…
If this wasn’t the case, the lawyer profession wouldn’t exist at all – they would all be replaced by machines. But it’s still too early to cast the lawyers into the dustbin of history because each provision of the law must be interpreted based on the general spirit and context of the law.
An experienced lawyer can always turn any law inside out if he isn’t constrained by some sort of general principles in his interpretation. This is why every authoritarian regime has its own “letter-based” constitutional legitimacy. It emerges because the provisions of constitutional laws are interpreted literally regardless of their political, cultural and historical context.
From a “literal” standpoint, there are virtually no restrictions on occupying the Russian presidency for life. In this regard, it’s unclear why people are talking about the year 2024 in relation to Vladimir Putin. After 2024, someone could replace him once again, and then he could continue to run the country all the way up to 2046. Of course, it would be difficult to repeat this after 2046, but Putin, who is an active proponent of a healthy lifestyle, could easily live to the age of 94.
From this example alone, one can see that a “literal” interpretation of the Constitution in this instance does not work since it leads us to the argument that one person can serve as president for life. This, however, contradicts the implication of this constitutional provision, which was obviously introduced as a type of restriction with the exact opposite goal.
It’s unlikely that the legislator who introduced this provision to the Russian Constitution intended for this restriction to serve as a requirement for one person to alternate his stay in power with artificial one-term interruptions. If this was this case, then this provision would seem to fit better somewhere in the Labour Code in the section on the president’s “work time and vacation time”.
As it stands, we must nevertheless turn to the “spirit of the Constitution”. And here is where it gets interesting. The word “consecutive” raises the most questions while reading over the text of the Constitution. What may be considered an uninterrupted period in office and under what circumstances, and what constitutes proof of “a break in continuity”?
Proponents of the formal, literal approach maintain that “consecutive” simply means two terms one after the other as defined by the law. I, however, am of the opinion that “consecutive” means – more than two terms in power for one person or a group of people which he represents if power was not transferred on a competitive basis.
It’s clear that the restriction on the Russian president’s time in office to two consecutive terms, as established by Clause 3, Article 81 of the Russian Constitution, didn’t just appear on its own, but is an extension of certain principles set forth in the fundamental first and second sections of the Russian Constitution. Specifically, these restrictions are connected to Part 3, Article 13 of the Russian Constitution, which states the principle of political pluralism: “Political diversity and a multi-party system shall be recognised in the Russian Federation”.
Political diversity is based on the acknowledgement that political competition is as important a regulator of society’s public life as economic competition is for its economic life. Therefore, the provisions of Clause 3, Article 81 of the Russian Constitution on the restriction of the Russian president’s period in office to two “consecutive” terms should be interpreted within the context of the principle of political pluralism contained in Clause 3, Article 13 of the Russian Constitution being put into practice.
That is to say, “consecutive” means a period of being in power that is not so much restricted by formal terms as it is by a lack of political competition. In terms of the “letter” of the Constitution, the restrictions apply only to an unspecified number of years. In terms of the “spirit” of the Constitution, these restrictions are much broader – they also apply to instances when a person officially leaves power only to then return at his own initiative, avoiding any real political battle, that is, real competition, and thereby derogating political pluralism, one of the basic principles set forth in the Constitution.
If Vladimir Putin’s decision isn’t just announced, but also formalised as his decision to run in the 2012 presidential election on behalf of the ruling party, it could easily become the subject of numerous lawsuits.
In this case, the issue of whether any real political competition exists should become the main fact in question. Because if it’s determined that power was transferred from Putin to Medvedev after the former’s second term without any real political battle between them like some sort of political cession, that is, a ceding of rights, this would be a serious argument in favour of recognising Medvedev’s presidency as a third term for Putin.
Seen in this light, the jovial statements by those close to the tandem claiming that the two of them agreed on everything back in 2007, regardless of whether or not they are true, can be viewed as self-incriminating evidence since they suggest there was some sort of anti-constitutional conspiracy and bad faith in their intentions. I bet these members of the tandem will have to backtrack from their statements in the future in order to avoid any negative legal consequences.
In reviewing potential statements, the courts will be put in a very uncomfortable position: they will have to make a difficult choice between recognising the legitimacy of the totally absurd “literal” interpretation of the Russian Constitution’s provisions and the only possible, yet politically heretical, interpretation based on the universally recognised principles of pluralism and political competition.
The Constitutional Court of the Russian Federation could find itself in this extremely difficult predicament if one of the eligible entities files a corresponding inquiry concerning the interpretation of this constitutional provision.
Moreover, the rulings issued by the Russian courts, which predictably would favour the formal, literal interpretation given that they are politically dependent on the executive authorities, would be appealed at the European Court of Human Rights, whose decision would be much less predictable. This would all cast a certain veil of “illegitimacy” on a third term, which would hover over Vladimir Putin during his remaining time in office.
Everything described above is quite clear from a legal and constitutional point of view. The arguments I have put forth are ambiguous and highly debatable. But one thing is indisputable – this is a subject for a broad discussion in the legal world. The fact that our vast and highly skilled constitutional law community is not showing any interest in this speaks volumes about the difficult predicament in which this community finds itself in Russia today.