Contract to contract

What word should be removed from the Constitution

Many in the last month have discovered in themselves a lively interest in constitutional law. They are furiously discussing how to understand the norm of the third part of Article 81 of the Constitution on the impossibility to hold the position of the President of the Russian Federation "for more than two terms in a row." And they enthusiastically quote the ruling of the Constitutional Court of November 5, 1998 - more precisely, the phrase that “two terms of office in a row <…> constitute a constitutional limit, the excess of which the Constitution of the Russian Federation <…> does not allow.”

These disputes are by no means theoretical, they are about

may or may not, in accordance with the Constitution and the definition of the Constitutional Court, Vladimir Putin not only run for president for the fourth time, but also hold his current position, because he had already served “two terms in a row” in 2000-2008.

And there is an attempt by Ksenia Sobchak to challenge his registration as a presidential candidate in the current elections (although, as expected, it was immediately rejected by the Supreme Court).

Let's try to figure it out, all the more so since most of the disputants hardly remember why and in what circumstances the definition of the Constitutional Court was adopted. At that time, at the initiative of the Yabloko faction, a group of deputies (represented by Alexei Zakharov and Elena Mizulina in the Constitutional Court) applied to the Constitutional Court and asked for an interpretation of this article of the Constitution.

The essence of the matter was simple: presidential elections were scheduled for 2000, and some of Boris Yeltsin's supporters argued furiously that since Boris Nikolayevich was elected president of the RSFSR, and not Russia, in 1991, and before the adoption of the Constitution, his election in 1996 is the first , from which the countdown of those two terms that cannot be presidency "in a row" begins. And, consequently, in 2000 he can be elected again.

Yeltsin's opponents, including the authors of the request to the Constitutional Court, thought differently, believing that since 1996 Yeltsin has been serving not the first, but the second term, and cannot be elected for the third time in a row.

The Constitutional Court took their side - otherwise it would remain unclear which country Yeltsin was president of in 1993-1996. At the same time, in 1991-1993 it was the same country, just in December 1991, its name was changed by a special law - from "RSFSR" to "Russian Federation", and, accordingly, the president of the RSFSR became known as the president of the Russian Federation. And therefore, the term of office in 1991-1996, of course, goes "offset" for the two specified terms.

The decision of the Constitutional Court had the most important consequences - Yeltsin, realizing that he would not be able to be elected in 2000, began the search for a successor, which, we know, ended.

Now let's return to the current disputes - and the phrase from the definition of the Constitutional Court about the "constitutional limit".

It is possible (and, in my opinion, this is precisely the correct position) to interpret it as an absolute maximum - if someone has served as president for two consecutive terms, then he cannot be elected again. This means the unconstitutionality of the fourth term of Vladimir Putin. Moreover, his current term is called into question - after all, the question of whether he can be elected for the third time, after the "castling", should have been raised back in 2012. But then, for some reason, no one remembered the definition of the Constitutional Court of 1998 ...

However, there is another interpretation of part three of Article 81: after a break in government, one can again be elected president without violating the Constitution. And this position, based on a literal understanding of the rules of law (and the courts usually apply them only in this way), is defended by quite a lot of lawyers. Including those who are skeptical about the incumbent president, which means that in this case he has the right to be elected again in 2018. And it is necessary to fight him in the elections, not relying on the Supreme Court appointed on his own proposal.

The question arises - what did the authors of the Constitution have in mind when they wrote down the norm about "no more than two terms in a row"? This is the absolute maximum - or not? And it turns out that they just didn't think about it.

In any case, Professor Viktor Sheinis, one of the participants in the Constitutional Conference that drafted the 1993 Constitution, says that at that time such a possibility never occurred to anyone: completely different problems were more pressing. By the way, the wording “no more than two terms in a row” (an option without the word “in a row” was previously discussed, that is, an absolute ban on being president for more than two terms, regardless of breaks), according to Sheinis, was proposed by Sergey Alekseev, Sergey Shakhrai and Anatoly Sobchak.

Finally, let's set up a thought experiment.

Imagine that President Imyarek serves his first term and then gives way to a successor. Then he is elected for a second term and ... after it, he again gives way to a successor, maybe even the same one. Then he is elected for a third term, then again gives way ... At the same time, he does not have “two terms in a row” anywhere, the “constitutional limit” has never been exceeded, you can’t find fault. And the president sits in the Kremlin for the fourth time, and after another "shuffle" is going to the fifth: it turns out that the "limit" is not a serious obstacle to the monopoly on power.

The authors of the Constitution could rigidly fix the change of power - it was only necessary to write "no more than two terms" without any "in a row." And then today no one would argue about how to interpret Article 81 of the Constitution.

Let's summarize: to remove the words "in a row" from the Constitution, according to Grigory Yavlinsky, is one of the priority tasks of the future constitutional reform. Until a more radical reform is carried out - with the deletion of the presidential post itself from the "staffing" of the Russian government. Together with disputes, how many times can it be occupied.