Voting cannot be banned – Newspaper Kommersant No. 62 (7507) of 04/11/2023
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Elections to regional parliaments are scheduled for September 2023 in four new constituent entities of the Russian Federation, but under the conditions of martial law introduced there, according to the relevant federal constitutional law, elections and referendums are not held. According to Kommersant’s information, the Kremlin’s domestic political bloc is considering various options for how to get around this restriction – from changing the profile law to “geographical” adjustments to the presidential decree on martial law. Lawyers also admit that no amendments at all will be needed to solve this problem.
The norms for holding legislative elections “on the second Sunday of September 2023” are contained in all four federal constitutional laws (FKZ) on the admission of new subjects to Russia. They were signed by Vladimir Putin on October 5, 2022. But already on October 20, the president, by his decree, introduced martial law in the Donetsk and Luhansk People’s Republics (DNR and LNR), as well as in the Zaporozhye and Kherson regions. And according to the FKZ “On martial law”, “on the territory where martial law has been introduced, referendums and elections to state authorities and local self-government bodies are not held.”
Nevertheless, according to Kommersant’s information, at the moment the presidential administration (AP) is determined to hold these elections. As Kommersant previously reported, last week an article was published by a member of the Central Election Commission of the Russian Federation, Igor Borisov, and an employee of the Russian Center for Training in Electoral Technologies, Vladimir Lysenko, in which they prove that even in the most difficult security situations, the preservation and provision of voting rights and freedoms is a necessary condition for the further progressive development of society. As an example, the authors cite the experience of Afghanistan, Iraq, Kosovo and Venezuela, where elections have already taken place in the conditions of actual hostilities.
Kommersant’s source in the Central Election Commission explained that the commission is not working out specific legal forms and options for changing legislation, but “proceeds from an internal understanding of the need for elections (in four new regions.— “b”) and the readiness of the electoral system for the fact that elections on a single voting day will take place there.
According to Kommersant’s sources, at the moment the Russian authorities are considering three main options for how to get around the ban contained in the FKZ “On Martial Law” and still hold elections in the new regions of the Russian Federation.
Thus, an informed source of Kommersant in the State Duma believes that for this it will not even be necessary to change any regulatory legal acts. He draws attention to the fact that the four FKZs on the admission of new subjects of the Russian Federation have the same legal status as the FKZ “On martial law”, and the cancellation of the elections would mean a violation of these laws. At the same time, according to Kommersant’s interlocutor, the norm on elections from the laws on accession has priority over the norm on the prohibition of elections from the law on martial law, therefore, martial law is not required to be canceled for the autumn vote.
The second option is to correct the presidential decree on the introduction of martial law: the possibility of such a resolution of the legal conflict that has arisen is indicated by two well-informed sources of Kommersant close to the Presidential Administration. According to the text of the document, martial law has been introduced throughout the territory of the DPR, LPR, Zaporozhye and Kherson regions. Therefore, it is enough to prescribe a clear geographical framework in the decree so that the martial law regime does not extend to the entire territory of these subjects, but only to the “line of contact”, where exactly the hostilities are taking place, Kommersant’s interlocutors explain.
Finally, the third option is to still adjust the FKZ “On Martial Law” itself. To some of Kommersant’s interlocutors, including one source in the Presidential Administration, this option seems the most likely, although an informed interlocutor in the State Duma assures that “they don’t really want to touch this law.” Nevertheless, two Kommersant sources in the AP confirm that all of the above options can be considered as possible ways to solve the problem.
According to electoral lawyer Oleg Zakharov, all of the above options have their own logic. Moreover, this is not the first time that the Russian authorities are faced with the fact that certain norms of different laws contradict each other, the expert notes: “Such cases were at the level of regional elections. And somehow there was a big discussion in the CEC about the contradiction between the norms of the laws on guarantees of electoral rights and on elections to the State Duma.” In this situation, the Kremlin probably proceeds from the fact that the revealed contradiction needs to be resolved if some kind of broad discussion has already arisen around it, Mr. Zakharov suggests. Therefore, according to him, the authorities can agree that elections should be held if their necessity is fixed in four FKZs: “They will simply say that there really is such a contradiction, but you can continue to live with it and hold elections without correcting anything. It happened like that.” The situation may require additional actions in the event of official complaints or attempts to provoke a scandal, the lawyer argues: “But for this, the option of adjusting the decree is in my pocket. It is quite simple, and it can be implemented at any time. But, probably, they don’t want to do it urgently and unnecessarily.” Oleg Zakharov considers the option of changing the FKZ “On Martial Law” to be the most difficult: firstly, it is not good to change laws for a specific situation, and secondly, changing the FKZ is a complex public procedure that requires additional negotiations with the Duma parties.
Lawyer of the Institute of Law and Public Policy (the NPO is included in the register of foreign agents) Ivan Brikulsky recalls that the new regions became part of the Russian Federation on the basis of international treaties, which, if we follow the literal interpretation of Art. 15 of the Constitution, have greater legal force than even the FKZ, including the law on martial law. With this interpretation, the authorities “do not need to make unnecessary gestures”, and the elections (there is a clause on holding them in September 2023 in all four treaties) can be held under martial law, the lawyer explains. In addition, by decree, the president can even temporarily lift martial law during the voting period, Mr. Brikulsky admits: “This will have an important political effect: a return to normal life. Moreover, nothing prevents the introduction of martial law again or simply suspend it. The president has no limits.” Finally, the expert considers the president’s appeal to the Constitutional Court to interpret the “competing” norms of the two FKZs as a less probable, but quite possible option.
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