For nearly three years already, the Day of the Russian Constitution has ceased to be a day that brings joy
December 30, 2022
Ekaterina Mishina, PhD in law, Professor at the Free University, Visiting Professor at the University of Michigan (2012–2016), Assistant Professor at the Department of Constitutional and Municipal Law at the School of Law at the Higher School of Economics (2005–2014)
For nearly three years already, the Day of the Russian Constitution has ceased to be a day that brings joy. It is no longer even a holiday that “brings tears to one’s eyes”; rather, it is a day of remembrance for the original Constitution that was adopted in 1993. This Constitution was obviously not perfect and was tailored, like a French-patterned suit, to a specific Russian president, but, at the same time, it enshrined the principle of the separation of powers, the supremacy of international law, human rights and freedoms as the highest value, and the independence of courts and judges. It granted enormous powers to the Russian president, but Boris Yeltsin, for whom the document was written, did little to extend the list of presidential powers envisaged in it—and for that reason the Boris Yeltsin era is known as the period of “weak presidentialism.” His successor has taken a different road—the road of unrelentingly strengthening the power vertical, which reached its ultimate expression in the 2020 constitutional amendments. By the power granted by these amendments, the now nearly irremovable president holds all branches of power tightly in his hands. This article covers the evolution of different paths of presidential power in Russia, Azerbaijan, Kazakhstan, and Georgia.
Russia: Constitution and the president
The initial design of the 1993 Russian Constitution provided for a powerful president, which is unsurprising: Russia’s constitutional model is largely based on the 1958 Constitution of the Fifth Republic in France. That document was a response to a dire political crisis that showed that the parliamentary model of the Fourth Republic was incapable of effectively resolving the emerging situation. In early May 1958, the leaders of the Fourth Republic concluded that it was necessary to bring General Charles de Gaulle, the leader of the French Resistance during World War II and the head of the first post-war government in France, back into power. On June 1, 1958, President René Coty, who had threatened to resign unless the parliament approved de Gaulle’s candidacy for the prime minister’s office, offered to form a new government. De Gaulle agreed under one condition: development of a new Constitution.
The Constitutional Law of June 3, 1958, gave De Gaulle’s government the power to prepare a draft of the new Constitution and bring it to a referendum, and, additionally, it established the five foundational principles of the future Constitution[1]:
The Constitution of the Fifth Republic went down in history as a classic ad hoc constitution: it was tailored, like a suit, to a specific charismatic leader—General Charles de Gaulle. This Constitution is sometimes referred to as “Caesarist,” since the powers it granted the president of France were similar in scope to those of the Roman emperors. It’s no surprise that it was the French model, tailored to a powerful president, that was eventually adopted by the developers of the 1993 Russian Constitution.
In the Russian constitutional model, the president is not simply a powerful figure—he is the main organ of state power. Article 10 of the Constitution, establishing that state power in Russia is implemented on the basis of its separation into legislative, executive, and judicial branches, does not mention the president. But Article 11, which lists the organs of state power in the Russian Federation, includes four branches of power—and it is the president that is mentioned first.[3] Analysis of the text of the 1993 Constitution, even in its original version, leaves no doubt that the president is the main actor and the most important organ of state power. At the same time, the president is not even a part of the system of separation of powers.
This conclusion is also reflected in Russian legal doctrine. Many Russian constitutionalists and legal scholars share this point of view. In the volume titled “Commentary on the Constitution of the Russian Federation” (edited by legal scholars Valery Zorkin and Leonid Lazarev), it is noted that “while remaining outside of the bounds of the traditionally delineated three branches of unified state power, […] the president integrates Russian statehood, […] de jure and de facto he is ‘present’ in every branch of power.”[4]
Russian academician Vladik Nersesyantz wrote back in 1999 that the “system of separation and interaction of powers [established by the 1993 Constitution] is, on the whole, of an asymmetric and disbalanced character, with an obvious tilt towards the powers of the president and his domineering role in the administration of state affairs, while other branches display clear weaknesses compared to the powers of the president. The Constitution grants the president a very broad scope of rights, which, in essence, span all spheres and directions of organization and administration of state power in the country.”[5] Nersesyantz noted that “even though in accordance with the principle of separation of powers into legislative, executive and judicial branches that is entrenched in Article 10, it is clear that all presidential power (the entire summation of the President’s constitutional powers) lies specifically with the executive branch, the meaning of a number of other articles indicates that presidential power seems to be placed out of the bounds of the classic triad and be constructed as a separate (initial, basic) power that sits above this standard triad.”[6]
According to legal scholar Oleg Kutafin, due to the fact that the statement “the president provides for the mutually agreed upon functioning and interaction of the state power organs” [7] was included in the text of the constitution, a specific institute of presidential power that sits above all other branches of the government has emerged.[8] Legal scholars Mikhail Krasnov and Ilya Shablinskiy note that “by excluding the president of the Russian Federation from the triad of branches of power, the Constitution places him above them.”[9]
An enormous quantity of new presidential powers emerged through the efforts of the parliament. For over two decades, through the adoption of federal laws, the president has been accumulating additional powers in the executive branch. Legal scholar Elena Glushko confirms that “one can hardly doubt the fact that the presidential powers in the sphere of the executive branch are quite extensive, and even dominating in a number of directions.”[10]
The president was granted an impressive quantity of new powers by the federal constitutional laws “On the government of the Russian Federation” (1997), “On the state of emergency” (2001), “On martial law” (2002), as well as by federal laws “On foreign intelligence” (1996), “On countering terrorism” (2006), and others. The president received especially extensive powers in the sphere of public service. Glushko notes that the powers of the president in this area have a tendency to expand relentlessly and “in fact, the president has been acknowledged as the main ‘patron’ of public service in Russia.”[11] In addition, a number of federal laws established new presidential powers in the spheres of the economy, foreign trade, social policy, etc. It is noteworthy that some of the president’s new powers are established by decrees.[12]
A continuously widening, panoramic, and, at the same time, mandatory vision of certain constitutional legal issues is provided by the actions of the Constitutional Court. First and foremost, this concerns the span of presidential powers that were initially provided for by the Constitution. In Resolution No. 10-P from July 31, 1995, the Constitutional Court clearly established the following: The Constitution determines that the president acts according to the order established by the Constitution. For cases wherein this order is not detailed, as well as in regard to powers that are not listed in Articles 83-89 of the Constitution, their common bounds are defined by the principle of separation of powers and the requirements of Article 90, Part 3 of the Constitution, in accordance with which the decrees and orders of the president must not contradict the constitution and laws of the Russian Federation.[13] This ruling is nothing but a confirmation of the presence of extensive powers inherently endowed to the president.
The Constitutional Court has repeatedly heaped helpings onto the president’s plate. Resolution No. 11-P from April 30, 1996, has expanded the norm-setting function of the head of the state. In this resolution, the Constitutional Court stated that, as the guarantor of the Constitution, the president provides for the mutually agreed upon functioning and interaction of organs of state power, issuing presidential decrees that fill in the gaps in the regulatory framework regarding issues demanding a legislative resolution, as long as such decrees do not contradict the Constitution of the Russian Federation and federal laws and their temporal scope is limited to the period prior to the adoption of the corresponding legislative acts.
In Resolution No. 28-P from December 11, 1998, the Constitutional Court granted the president the right to “push through” his candidate of choice for the office of government chairperson. If the president’s proposed candidates are rejected by the parliament three times—regardless of whether it was three different candidates or one candidate put forward three times—the State Duma becomes subject to dissolution.
Another power that the president has the right to exercise under conditions of a “lazy parliament” was provided by the Constitutional Court’s Resolution No. 9-P from June 25, 2001, according to which when the subject of regulation is a power corresponding, in its essence, to the functioning of executive power and its organs, and the federal legislature has not made the necessary corrections to the pertinent legislative acts for a long time, the president, to implement the power proscribed by the Constitution on the provision of mutually agreed upon functioning and interaction of the organs of state power and to exercise his assigned responsibility on the protection of human rights and freedoms, has the right to undertake legal regulation through a decree, under the condition that the temporal scope of such a decree is limited to the moment when the pertinent legislative act comes into force.
The Constitutional Court also helped tap the magical powers of Article 80, Part 3, of the Constitution, according to which the president determines the state’s domestic and foreign policies. This is a very odd norm that only weakly coheres with the principle of separation of powers, and which has, unfortunately, drifted from the Soviet constitutions into the post-Soviet one. It had appeared in the first Soviet constitution—the 1918 Constitution of the Russian Soviet Federative Socialist Republic (RSFSR). According to its Article 49 (b), the general course of all foreign and domestic policies fell under the purview of the All-Russian Congress of the Soviets and the All-Russian Central Executive Committee of the Soviets, along with other issues of state importance. Let me remind you that, in accordance with the 1918 Constitution, the former was the RSFSR’s highest authority, and the latter was its highest legislative, administrative, and controlling organ, serving as the highest power of the republic in the period between the congresses.
In the 1997 Constitution of the Soviet Union, the course of both domestic and foreign policy was defined by the Communist Party. In the late 1980s, after the adoption of amendments to the 1978 Constitution of RSFSR, determination of the country’s domestic and foreign policies was attributed exclusively to the RSFSR’s Congress of the People’s Deputies, the highest state power authority.[14] This norm of Soviet constitutions has outlived the Soviet Union itself, and, following the adoption of the new Russian Constitution, the determination of domestic and foreign policies became the head of state’s privilege.
Krasnov and Shablinsky note that a typical Soviet trait was the doctrinal acknowledgement of the necessity of Soviet sovereignty as opposed to the idea of separation of powers. They view this presidential privilege as a time bomb and the cause for the constitutional construction of power being stripped of balance with a significant tilt toward presidential authority.[15] The Constitutional Court, however, did not see the disbalance and highlighted that the binding force of determining the state’s domestic and foreign policy was constitutionally implied as belonging with the government first (Resolution No. 28-P from December 11, 1998) and then with all organs of public power (Resolution No. 9-P from November 29, 2006).
Former Soviet republics: Different trajectories
The Russian constitutional provision that granted the president the power to determine domestic and foreign policies was popular in the post-Soviet space, and some former Soviet republics that were predisposed to a constitutional model with a powerful president have included the same norm in their constitutions (Kyrgyzstan’s 1993 Constitution, Kazakhstan’s 1995 Constitution, etc.) In the first version of Georgia’s 1995 Constitution, this norm was also present: “the president of Georgia determines and directs the state’s domestic and foreign policy.”
It would seem that this provision, by strengthening the president’s personal power, should inevitably result in the head of state falling to the temptation of growing authoritarianism. However, these countries’ further constitutional development demonstrate that this is not the case. Following the April 2010 revolutionary events in Kyrgyzstan, a new constitution was adopted establishing a constitutional system with a much stronger parliament (the Jogorku Kengesh, or Supreme Council) and a significantly weaker president. Unfortunately, this oasis of parliamentarism in Central Asia lasted not even a decade. During the April 11, 2021, constitutional referendum, new amendments to the constitution were adopted bringing Kyrgyzstan back into the era of strong presidentialism. On May 5, 2021, President Sadyr Zhaparov signed the new version of the country’s constitution.
Georgia
In Georgia, constitutional events unfolded differently. In 2010, the country saw a constitutional reform focusing on restricting presidential powers and significantly strengthening those of the prime minister and the government. The government became the highest executive authority that determines domestic and foreign policies and is no longer accountable to the president, but to the parliament only. The prime minister no longer needs the president’s consent to appoint and remove government officials. The president, as the head of state, retains the powers of commander-in-chief, guarantor of national independence and unity of the country, and is the country’s representative in international relations. Additionally, the procedure of countersignature was introduced and the president was prohibited from holding any positions in political parties.
September 26, 2017, saw a new turn of constitutional transformation in Georgia—a noticeable strengthening of the parliament, which now determines the country’s domestic and foreign policies. The mixed electoral system was discontinued, and both chambers of the Georgian Parliament (the Council of the Republic and the Senate) are now elected according to a proportional system. The key change in the chapter concerning the president was the cancellation of direct elections. From now on, Georgia’s president is selected by the electoral college. The same individual may be elected as the country’s head of state only twice.
Azerbaijan
There are, however, other examples wherein post-Soviet states relentlessly follow the path of strengthening presidential powers. The process of constitutional transformation in Azerbaijan looks particularly impressive. First, this country’s turnover of power sustained a huge blow in 2009. The key change that was made to Azerbaijan’s 1995 Constitution was the lifting of the restriction previously imposed by Article 101, according to which no one could be elected president more than two times in a row. The new wording allows the current president to run for subsequent terms an unlimited number of times.
This amendment provoked a negative reaction from the Venice Commission, which noted in its own brief that “separation of powers is the cornerstone of any law-bound state. In countries with a presidential (or sometimes semi-presidential) republic, there is a tendency to concentrate authority privileges in the hands of the president, whereas the corresponding powers of the legislative and judicial branches of government are significantly weaker. Therefore, a regular regime change through the means of elections is an appropriate method of preventing the excessive concentration of power in the hands of the president.”[16] The Venice Commission also noted that Azerbaijan, whose Constitution establishes a presidential republic as the country’s constitutional system, is, doubtlessly, a country where the president has concentrated excessive powers in his hands, whereas the system of checks and balances is significantly restricted. Therefore, it was completely logical that the original version of Azerbaijan’s Constitution established the restriction of only two presidential terms.[17]
In September 2016, Azerbaijan held a constitutional referendum followed by the adoption of constitutional amendments, including the following:
Kazakhstan
In 2022, Kazakhstan reconsidered certain provisions of its 1995 Constitution. The law on amendments and additions to the Constitution of the Republic of Kazakhstan, which was approved by referendum on June 5, 2022, contains more than 50 amendments that concern nearly a third of the text of the basic law.[24] Unlike earlier changes to the Constitution, which all extended the powers held by the head of state, the 2022 amendments move toward restricting presidential powers:
Unfortunately, the 2022 changes did not touch upon a very unfortunate constitutional provision regarding presidential impeachment, which is applicable only in cases of high treason. The presidential power to determine the country’s domestic and foreign policies (Article 40, Part 1), which is so popular in the post-Soviet space and so destructive to the principle of separation of powers, was also preserved.
International evaluations
The Council of Europe characterized Azerbaijan’s constitutional referendum as a blow to the country’s democratic development. Austrian lawmaker Stefan Schennach, co-rapporteur of the Parliamentary Assembly of the Council of Europe for the monitoring of Azerbaijan, critiqued that the referendum on constitutional amendments had been announced too close to the date it was to be held. In an interview, he noted that, in June 2016, neither the Azerbaijani president, nor any other government official, had said a single word about the referendum they were planning for September, stating that “when issues of such significance are brought to a referendum, more time should be provided for discussions in the country.”[26]
The Venice Commission, too, criticized the amendments to Azerbaijan’s Constitution in their “Preliminary opinion on the draft modifications of the Constitution submitted to the referendum of September 26, 2016.” According to the commission, the suggested amendments violate the balance between the branches of government. “The new powers of the president, introduced by the draft, are unprecedented even in comparative respect: they reduce his political accountability and weaken the parliament even further. The Venice Commission is particularly worried by the introduction of the figure of unelected vice presidents, who may at some point govern the country, and the president’s prerogative to declare early presidential elections at his/her convenience.”[27]
The experts of the Venice Commission posited that the extension of the presidential term up to seven years will strengthen executive power in Azerbaijan even more. The power to dissolve the parliament will limit the parliament’s independence and restrict the judicial system, since judges are appointed by the parliament. The commission has also noted that too little time was dedicated for the preparation of the referendum, and the amendments were not discussed in the parliament or in the public.
Some of the 2020 amendments to the Russian Constitution drew the Venice Commission’s attention as well—though, unfortunately, not all of them. In its “Opinion on the draft amendments,” the Venice Commission analyzed the following changes:
Having repeatedly noted the importance of executing decisions made by the European Court of Human Rights (ECHR) for the effectiveness of the system established by the European Convention, the Venice Commission highlighted that adherence to the court’s decisions is a key responsibility of the convention’s member countries. The commission stressed the important role national courts play in the effective execution of ECHR’s decisions, as well as the fact that, having joined the commission, member countries directly accepted the court’s competence not only to apply, but also to interpret the convention. At the same time, the Venice Commission acknowledged that in the process of executing such decisions, the legitimate supremacy of a state’s constitution can turn into a “complex problem to overcome.” As a result, some states have deemed it necessary to initiate constitutional reforms, thereby finding an appropriate solution to the issue (p. 56 of the Opinion).
The Venice Commission highlighted that the Strasbourg Court’s decisions are of a mandatory character, but in countries whose constitutions have priority over the European Convention, the constitutional courts might find contradictions between the national constitution and ECHR’s interpretation of specific provisions of the convention. Nevertheless, such contradictions do not make the country exempt from its obligation to implement the ruling made against it and do not indicate an automatic termination of the issue. A compromise may be found through a dialogue between the ECHR and the national courts. In the most challenging cases, the question of potentially amending the national constitution could be brought to the agenda.
Having praised Russia’s Constitutional Court, the Venice Commission expressed concern with the new presidential right to initiate the termination of the powers of Constitutional Court justices in the Federation Council, as proposed by the constitutional amendments. Having noted that the right of the executive power to initiate the procedure of judicial dismissal is not per se problematic, provided that the removal process is a judicial one, the commission underscored that introducing such a power in the existing context—in the absence of regulation of this process in the Constitution—will increase the likelihood of the executive power having influence over the Constitutional Court (p. 60). Additionally, the right of the Federation Council to terminate the powers of the Constitutional Court justices at the president’s request makes the Constitutional Court vulnerable to political pressure.
Previously, the Venice Commission noted that the Constitutional Court’s 2015 ruling that ECHR’s decisions cannot be executed in Russia contradicts the country’s obligations as a member of the European Convention. Now, the commission is extremely concerned with the constitutional entrenchment of this power and with the fact that the new amendments extend the powers of the court to rule on the impossibility of executing decisions of interstate bodies made on the basis of international treaties of the Russian Federation, if their interpretation contradicts the Russian Constitution. The commission also points to the worrisome fact that the amendments use the notion of “contradiction to the Constitution of the Russian Federation,” which is exceedingly vague, especially when compared to the original edition of Article 79, which “does not entail limitations of human and civic rights and freedoms and does contradict the foundations of the Constitutional order of the Russian Federation,” according to the commission.
The conclusion, overall, is unpromising: a number of post-Soviet states that initially chose a constitutional model with strong presidential powers currently display a tendency to further expand these powers. After a decade of fast-paced strengthening of parliamentary powers, Kyrgyzstan is returning to strong presidentialism. Russia and Azerbaijan don’t appear to have so much as veered from this path. Therefore, transformations in Georgia consistently oriented toward strengthening the parliament and restricting presidential powers look especially inspiring.
[1] The text of France’s 1958 Constitution is available here:
[2] Ibid.
[3] This was noted by Professor Vladik Nersesyantz of the Russian Academy of Sciences in Problems of the general theory of state and law. Ed. by Nersesyantz, Moscow, 1999.
[4] “Commentary on Article 80 of the 1993 Constitution of the Russian Federation.” Ed. by Zorkin, V.D., Lazarev, L.V. Full text (in Russian) is available here: https://kommentarii.org/konstitutc/index.html
[5] Problems of the general theory of state and law. Ed. by Nersesyantz, V.S. Moscow, 1999. p. 688-690.
[6] Ibid, p. 689.
[7] Article 80, part 2, of the 1993 Constitution of the Russian Federation (original version).
[8] For more, see: Kutafin, O.E. Russian Constitutionalism. Moscow, 2008.
[9] For more, see: Krasnov, M.A., Shablinsky, I.G., Russian system of power: One-angle triangle. Moscow, Institute of Law and Public Policy, 2008.
[10] Glushko, E.K “Powers of the President of the Russian Federation in the sphere of executive power. In: Executive power: Problem of organization and activity. Anthology. Moscow, 2006, p. 21.
[11] Ibid., p. 35.
[12] Ibid., p. 43
[13] Ruling No. 10-P of July 31, 1995, part 4.
[14] Article 104 of the 1978 Constitution of the RSFSR.
[15] For more, see: Krasnov, M.A., Shablinsky, I.G., Russian system of power: One-angle triangle. Moscow, Institute of Law and Public Policy, 2008.
[16] Opinion on the Draft Amendments to the Constitution of the Republic of Azerbaijan (adopted by the Venice Commission on March 13–14, 2009), p. 10.
[17] Ibid, p. 13.
[18] Article 101, part 1, of the Constitution of Azerbaijan. The amended text of the Constitution is available here:
[19] Article 103.1 of the 1995 Constitution of Azerbaijan.
[20] Ibid, Article 106.1.
[21] Ibid, Article 105.
[22] Ibid, Article 110.1.
[23] Ibid, Article 98.1.
[24] Law of the Republic of Kazakhstan “On the introduction of amendments and additions into the Constitution of the Republic of Kazakhstan” (adopted at the republican referendum on May 6, 2022; results officially published on 06.08.2022). URL: https://online.zakon.kz/Document/?doc_id=39894735&pos=1;-8#pos=1;-8
[25] Ibid, p. 15. URL: https://online.zakon.kz/Document/?doc_id=39894735&doc_id2=1005029#pos=3;88.33332824707031&pos2=59;-96.33332824707031
[26] Quoted in: Mischenko, O. “Azerbaijan held a referendum on changes to the Constitution.” Deutsche Welle, September 26, 2016 (in Russian). URL: https://www.dw.com/ru/в-азербайджане-прошел-референдум-об-изменениях-конституции/a-35887567
[27] Point 86 of the Preliminary Opinion of the Venice Commission of 20 September 2016 on the Draft Modifications to the Constitution of Azerbaijan submitted to the Referendum of 26 September 2016. URL: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2016)010-e
[28] The full text of the Opinion of the Venice Commission is available here:
