Vladimir Putin’s mobilization order was legal, but will the Russians consider it legitimate?

Vladimir Putin’s edict announcing the appeal of thousands of reservists for his so-called “special military operation” in Ukraine appears to have sparked widespread panic and protests among the Russian public. It seems that, at least to some, this executive order has finally made clear not only the seriousness but also the proximity of the war their president has visited against their neighbor.

Even some of the most ardent supporters of the president, while apparently accepting the formal validity of the edict, in practice seem to question its legitimacy.

When Putin’s predecessor, Boris Yeltsin, came to power in 1991 after the collapse of the USSR, he faced enormous constitutional problems. In the transition from a Soviet economy to a market economy, legal vacuums arose everywhere – the private property law was one of the bigger ones. There was also a fight for control over the direction of travel.

Things came to a head in 1993 when Yeltsin called in the military. He won the battle with the opposition-dominated legislature and celebrated with the unveiling of a new constitution that gave him far-reaching powers – at the expense of parliament.

A ‘super presidency’

Thanks to Yeltsin, the president acquired a set of very important powers in all three traditional branches of constitutional authority: legislative, executive and judicial. These powers were further expanded by Putin’s constitutional amendments in 2020. Today he can dissolve the Duma (the House of Representatives) and announce new elections. He can appoint and dismiss the head of government and their deputies. He can even fire the highest judges if he says they “tarnish the reputation of the judiciary”. Undoubtedly, the presidency is now in effect a fourth branch of the constitutional authority overarching the other three.

The presidential edict is one of the mechanisms through which the president exercises these powers. It is a form of legislative instrument with deep roots. Yeltsin took over from the old constitution of the USSR and under the 1993 constitution enhanced its effectiveness to such an extent that he could even issue edicts on edicts that would remain good law until either repealed or replaced by federal law that was adopted by Parliament. The only restrictions are that an edict cannot conflict with the Constitution or federal law.

Today, there is nothing in the Constitution of the Russian Federation that prevents the president from issuing an edict in any area he wishes. He does not have to explain publicly how edicts are made or submit a draft to another authority of the state for review. Edicts are drafted by the presidential administration and do not need to be approved by parliament. It is possible that the parliament does not know the content of an unpublished edict.

The supremacy of its constitutional powers is so great that these edicts are extremely difficult—if not impossible—to challenge. Cases can be brought before the Constitutional Court, but in practice this is of limited value now that the president has the power to not only hire but also dismiss court judges.

Mobilization

Of the more than 680 edicts Putin has issued this year, one of the most controversial is the edict on the “partial mobilization” of reservists. Perhaps unsurprisingly, given the public response, the appeal was made by edict rather than legislation, which should be discussed publicly in parliament. Little attention seems to have been paid to what the public might think.

A young man is arrested at a mobilization protest in St. Petersburg.
There are widespread protests across Russia over forced mobilization.
EPA-EFE/Anatoly Maltsev

Immediately after the announcement of the edict, the Speaker of the State Duma, Vyacheslav Volodin, announced that laws would be introduced to, among other things, protect the jobs of reservists and introduce mortgage holidays for those called up. But these measures have lent the process only the thinnest veneer of constitutional respectability. Moreover, the perceptions have not been helped by the simultaneous adoption by the Duma of a new law – apparently enacted with support from all parties – that tightens the penalties for avoiding convocation, desertion, apostasy and so on.

Lack of transparency

Another problem with the edict that has caused consternation is the failure to publish a section – apparently on the grounds that it is “for official use only” (section 7 of the edict, N 647). In the circumstances, it is not surprising that people question the legitimacy of the edict. Still, the editors themselves shouldn’t really come as a surprise. The idea that a law can be enacted, but not published, is not new in Russia. In Soviet times, many laws in force were not published, although this led to “legal chaos” – it is worth mentioning AL Makovsky, one of the founders of Russian private law, on the codification of Russian civil law on this subject to read. And again, it was Yeltsin who assumed this constitutional power in his 1996 Edict on Edicts.

Under the Edict on Edicts, a presidential edict must be published unless it pertains to or contains state secret or confidential information. While there are two categories of exemptions, they are very broadly defined – and include everything from information about the economy to legal proceedings.

In addition, not only does the president have the power to edit a particular section, but the entire edict can be withheld from publication. It is a power that Putin has used extensively over the years, consistently withholding at least a third of his edicts from the public. At crucial moments, it was almost two-thirds – in March of this year, after the invasion of Ukraine, more than 60% of presidential edicts went unpublished in their entirety.

While Putin may well find the appeal of hundreds of thousands of reservists, it is not clear whether this will happen with general public acceptance of the edict’s validity. The protesters’ response to it suggests that mere conformity to constitutional rules does not make it legitimate in their view.

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