In late October, Vladimir Putin introduced to the State Duma a new bill on the formation procedure of Russia’s Federation Council. The amendments, introduced as part of the constitutional reform, will allow head of state to appoint lifetime senators. Legal scholar Ekaterina Mishina evaluated the key ideas of this proposal.
The opening of a session at Russia's Federation Council. Photo: Yevgeny Krykakov / Flickr.com.
Once I overheard two close friends of mine eagerly discussing an important theoretical question: can parliamentarism develop without a parliament? The debate led nowhere, but the premise behind the initial question seems to have been a seed, which remained hidden until, at the beginning of this year, it suddenly sprouted. Russia will now have “Senators without a Senate.” Some of them are clearly supposed to be “first-class” senators, since they will be given the opportunity of a lifetime appointment. They are the lucky seven of the thirty senators that the president now has the right to appoint directly, in accordance with the new constitutional amendments. (According to the 2014 constitutional amendment, the president could appoint only 17 senators, or 10 percent of the Federation Council.) A former president can now also become a lifetime senator, unless, of course, they give up this right out of humility.
Lifetime senatorial offices do exist in a number of countries. According to article 59 of the Italian Constitution of 1947, every former president is entitled to a lifetime senatorial appointment. The Italian president also has the right to appoint as lifetime senators five citizens whose achievements in social work, science, arts, or literature raised the country’s profile. In some African states, former presidents become lifetime senators as well—in Burundi or the Democratic Republic of Congo, for example.
A system of lifetime peerages used to exist in the UK. It was applied to members of the Appellate Committee, which performed the judicial functions of the House of Lords—the upper house of the UK Parliament. When appointed, they would be titled Lords of Appeal in the Ordinary and awarded all the rights of a House of Lords member but, at the same time, they would be ex-officio members and receive a salary for their professional activities. In order to be appointed as a Lord of Appeal in the Ordinary, the candidate had to meet the general qualification requirements of a judge of the higher courts—the Appellate Court and the High Court of Justice. The independence of their judicial activities was guaranteed by parliamentary freedom of opinion and the irrevocability of lifelong peerage, particularly in professional status that excluded any possibility of suspension in the Appellate Committee of the House of Lords.
The benefits (for the appointees) of the Russian constitutional regulation of lifetime senatorships are clear. In order to achieve such a coveted promotion, Russian senators’ foreign counterparts would have to demonstrate convincing achievements—either in the arts, sciences, or social activities, as in Italy, or in law, as in the UK. The Russian Constitution, however, does not envision any additional stringent qualification criteria for lifetime senators besides those applied to regular senators. Article 95, part 5 of the Constitution states that “citizens who have demonstrated distinguished service to their countries in areas of state and social activity” may be appointed as lifetime senators. Therefore, those who have not demonstrated any service may be appointed as well. Interestingly enough, the 2012 federal law “On the Formation Procedure of the Federation Council of the Federal Assembly of the Russian Federation” established that, in order to be granted the appropriate powers, senatorial candidates must have an impeccable reputation; but this excellent norm was, unfortunately, never constitutionally reinforced. It seems that the authors of the latest constitutional amendments have preserved some rudimentary sense of humor.
Yet, there is another notable innovation in the bill suggested by Putin: a former president serving on the Federation Council as a lifetime senator may be deprived of immunity only in the same fashion as an incumbent president may be removed from office, that is, based on charges of treason or other grave crimes brought by the State Duma and with the appropriate opinions of the Supreme and Constitutional Courts. The final decision on stripping the president of immunity now lies with the senators, thirty of whom have been appointed by that same president. The opinions on corpus delicti and the correct charging procedure will be given by the judges, who may be removed from office by that same Federation Council. And something tells me that either the corpus delicti would be missing, or some sort of violation will be found in the order of the charging procedure, or the senators would simply not let anyone suspect their esteemed colleague.
I certainly agree with Professor Elena Lukyanova, who believes that the idea of creating the institution of lifetime senatorship contradicts the functional purpose of the upper house of the Russian Federal Assembly, whose main task is to represent the interests of the constituent entities of the Russian Federation in legislative processes. The idea of presidential appointees contradicts it in the same degree, since they, unlike their colleagues representing Russian regions, act as representatives of the Russian Federation.
Therefore, I will be watching the new procedure of lifetime senatorial appointments with the keenest interest. We are unlikely to see a horse in the upper house—after all, we haven’t plumbed Caligula-esque depths just yet. But maybe a dog? Still, canine appointments to the Federation Council might prove hard, since one of the country’s current vectors is forming a responsible public attitude towards animals. Alas, no puppy in the senate for us; but, based on what I see, the human senators will be fun enough to watch.
Ekaterina Mishina, PhD in Law, professor of the Free University.
Text translation: Elizaveta Agarkova.
