June 22, 2020
The 2020 constitutional amendment process in Russia is truly a remarkable manifestation of using quite bizarre legal drafting methodology to enhance the constitutional reform. Unlike previous endeavours, the Law of the Russian Federation on Amendment to the Constitution of Russian Federation ‘On Improving Regulation of Certain Aspects of Organisation and Functioning of Public Authority’ was developed as a vague, irrational piece of legal text. One does not have to be a lawyer or an even a linguist to understand that the latest alterations in the Constitution of Russia are an example of all deceitful stylistic manoeuvres that could have been invented and do not benefit the quality of a text. Brobdingnagian clauses, congested syntax with multiple self-repetitions and tautology, hyperbolised eagerness along with lack of semantic capacity—this is the legal writing style one definitely should crave to avoid. In this paper, I would like to stop at 3 examples from the 2020 version of the Constitution of Russia (i.e., amended version), serving as an excellent practice for those mastering the violation of any existing coherent legal drafting rules and recommendations.
Firstly, let us have a look at Article 671 (2) of the Constitution of Russia, inserted by the 2020 amendment law: ‘The Russian Federation, united by a thousand-year history, preserving the memory of the ancestors who transmitted to us the ideals and faith in God, as well as the continuity in the development of the Russian state, recognises the historically established state unity.’ The core of this ideological regulation—‘The Russian Federation… recognises the historically established state unity’—is a meaningless tautology. ‘Established state unity’ of what? Of Russia[n state]? Does Russia recognise the historically established state unity of Itself? What does the ‘historically established state unity’ or ‘continuity in the development of the Russian state’ mean in this context? Who or what has established it? The Constitution ironically provides no answers for these or any other similar questions.
Secondly, the new version of Article 81 (2) establishes the electoral criteria for presidential election candidates. Two sentences of this section look enormously long, reminding the looped lace: ‘As a President of the Russian Federation, a citizen of the Russian Federation who is at least 35 years old, who permanently resides in the Russian Federation for at least 25 years, who does not have and did not previously have the citizenship of a foreign state or the residence permit or other document confirming the right to permanent residence of a citizen of the Russian Federation in the territory of a foreign state, can be elected. The requirement for a candidate for the office of President of the Russian Federation regarding of absence of the citizenship of a foreign state does not apply to the citizens of the Russian Federation who previously had citizenship of the state that has been accepted or of the part of which has been accepted into the Russian Federation under the federal constitutional law, and who permanently resided in the territory of the part of the state has been accepted in the Russian Federation or of the territory of a part of the state has been accepted in the Russian Federation.’ The first sentence is a general regulation; the second one is a special regulation, providing an exception to the previous rule. However, multiple self-repetitions only obstruct the proper interpretation of this article, but it also includes an innuendo towards the Crimea (without mentioning it directly), since it enables the permanent residents of Crimean peninsula, occupied and annexed by Russia in 2014, to become a candidate for President of Russia, which is a flagrant violation of international law.
Thirdly, the so-called ‘nullifying constitutional amendment’ is a literally fascinating phenomenon. Perhaps, it is the only legal norm in Russian constitutional law which presents a unique neutral gender personal pronoun towards President Putin and ex-President Medvedev—it (i.e. ‘a person’ in the Russian language is a neutral-gender noun), being quite an unusual and definitely comic precedent in Russian legal style. A new version of Article 81 (3) sets a limit on the number of terms (irrelevant of its sequence) eligible for a person elected to the office of President of Russia: ‘The same person is unable to hold the office of the President of the Russian Federation for more than two terms.’ Nevertheless, a new section—Article 81 (31)—inserted to the Constitution of Russia offers a long quadruple negative regulation cancelling the possible positive effect of Article 81 (3): ‘The provision of Section 3 of Article 81 of the Constitution of the Russian Federation, limiting the number of terms during which the same person is able to hold the office of the President of the Russian Federation, applies to a person who holds and (or) held the office of the President of the Russian Federation, without taking into account the number of terms, during which [sic] it held and (or) holds this post for the time the amendment to the Constitution of the Russian Federation enters into force, introducing a corresponding restriction, and does not exclude the possibility for [sic] it to hold the office of the President of the Russian Federation for the terms allowed by the hereby provision.’ This unwieldy clause enables Putin to hold the President’s office up to 2036.
What valuable lesson can we learn from this constitutional conundrum in Russia concerning the legal writing style? Legal instrument drafting is an activity characterised by a particularly high level of difficulty and responsibility. Using any frivolous, irrational, absurd linguistic formulas and transformations is a dangerous endeavour affecting and undermining the legitimacy of such an instrument. That is why, please, refrain from this red tape writing style if any law or—even worse—a constitution is to be drafted.
Author: Dr. Oleksandr Marusiak, Centre of Policy and Legal Reform (Kyiv, Ukraine)Author : Ukrainian Liaison Office in Brussels