Quod licet Iovi: How the Government engaged in campaigning for constitutional amendments

Download (.pdf)

The "Golos" movement's experts have analysed the campaigning stage of the all-Russian vote for the Constitution. Although the Russian Central Electoral Commission does not claim the absence of campaigning on this particular occasion, it is a fact that it is present. The Constitutional Court has even indicated what rules it should follow and how different from normal informing by the electoral commissions and state institutions it should be. 

Although the campaigning stage is not over yet and, according to the law, it did not take place at all, the fact is that campaigning and administrative mobilisation of citizens occurred. And we will attempt to collect and note the main facts and events.

The campaign for the vote on the amendment of the Constitution is taking place on the background of a pandemic that presently doesn't appear to be subsiding. That adds to the limitation of basic rights and freedoms, including freedoms of assembly, movement and pluralism of opinion.

Nevertheless, it has been decided to proceed with the vote and budgetary means were allocated to that end, namely for informing the citizens. However, they weren't used for that; instead that money was used by the Government to run a campaign for amending the Constitution. Such a use of resources is called misallocation and is contrary to the Budgetary Code. The campaign even involved the Central Electoral Commission, an institution that is supposed to arbitrate as the commission organising elections.

For their part, the opponents of the constitutional amendments found themselves unable to carry out any sort of campaign. Apart from the campaign on social networks, that still remains unregulated; that is how online meetings took place on platforms not destined for that – for example with users leaving political comments on “Yandex Maps”.

Apart from that, the carrying out of such a widespread undertaking at the time of an epidemic puts the health of voters and commission members under threat. The measures taken under the pretence of protecting people are in fact merely decorative and even harmful: in practice, they make such a vote very difficult to control; also running competitions, lotteries and other actions that will not only increase participation but will also bring about concentrations of people at the polling stations, is not prohibited by anyone.

All that despite the fact that there is no rational necessity whatsoever to conduct the vote in conditions of "war time".

Summary:

The all-Russian vote for the amendment of the Russian Constitution is taking place in conditions of a limitation of basic civil freedoms, a lack of guarantees of protection for vote participants' rights, a lack of campaign regulation and a demonstrative ignoring of the principles of political neutrality and non-intervention, not only by the state institutions but also by the electoral commission's systems.

The third report of social monitoring of the all-Russian vote dedicated to the campaigning and administrative mobilisation of citizens. In the main text of the report contains concrete examples of curtailment of the vote’s participants’ rights and the incidents are briefly described. A more in-depth descriptions can be found in the addendum that included the more notable examples.

The lack of the concept of “campaigning” in the law on amendments and order of elections, ratified by the Russian CEC, does not mean that it does not occur as such. Campaigning is as a matter of fact already carried out by different groups. The refusal of the vote’s initiators to have campaigning legally regulated, only feeds the inequality between the capabilities of the supporters and opponents of the amendments. However, the concept of “campaigning” is listed in the stipulations of the Russian Constitutional Court that separates it from objective informing (including in fields unrelated to electoral law). The creation of conditions to provide real pluralism in the societal discussion is, according to the Russian Constitutional Court, a duty of the state. That is the minimal condition for the provision of the free expression of the will.

By not fulfilling the duties of provision of the free expression of the people’s will, that were assigned to it by the Russian Constitutional Court and by the international law, the Russian lawmaker has from the beginning a question mark on the result of the all-Russian vote, whichever it might be.

The conditions necessary for the free expression of the citizens’ will are described in detail in the “Golos” addendum titled “On the universally recognised, international and constitutional standards, applied for evaluating the all-Russian vote on the amendment of the Russian Constitution”. In the short form, these standards are shown in the “Register of the all-Russian vote” – a peculiar “notebook” relating to the safeguarding of the citizens’ rights in the course of the ongoing procedures. It is through the lens of respecting these standards that the “Golos” movement will evaluate the all-Russian vote.

Earlier, the “Golos” movement also prepared an addendum dedicated to the preparatory stage of the campaign for the all-Russian vote for amendments of the Russian Federation’s Constitution.

Key conclusions

The all-Russian vote for the amendment of the Constitution is recognised by the Constitutional Court as “a form of direct expression of people’s will”. The Russian Constitutional Court has repeatedly formulated the conditions that must be respected in order for the free will of the people to be expressed; these include: the respect of the basic human rights and freedoms, including freedom of assembly, freedom of movement within the country and freedom of association for political goals; the presence of rules regarding campaign funding, providing financial transparency and freedom of the expression of the will; the presence of conditions for real pluralism of the opinion and of the societal discussion; the political neutrality and non-involvement of the state and of public office holders on duty; the lack of pressure on the partisans of one point of view or the other and on the vote participants in general. 

1. The Coronavirus epidemic has become an excuse for the further lowering of the already insufficient guarantees of the all-Russian vote participants' rights' protection, substantially limiting the possibilities of publicly discussing the proposed amendments. As a result of that, an important political decision by the citizens in regards to accepting or rejecting amendments of the Russian Constitution will take place in conditions of limitations of basic civil freedoms (freedom of assembly, freedom of movement within the country, freedom of association). There was no necessity to conduct the vote in these difficult epidemiological conditions, as opposed to elections, the taking place of which is strictly tied to the end of term of the elected body; the vote for the amendments could have been postponed without any infringement of the citizens' rights and of the political process as a whole.
2. The provision of the vote participants' rights was also negatively influenced by the reluctance of the lawmakers to create conditions necessary for the expressing of the people's free will. The lack of campaign regulation and of rules relating to their funding do not allow to provide pluralism of opinion in the societal discussion i.e. to guarantee equal opportunities for campaigns both for and against the amendments.
3. The law on amendments strictly stipulates that governmental and municipal institutions, as well as electoral commissions can exclusively act by informing citizens about upcoming votes; it is to that very end that the budgetary means are allocated. However, under the guise of informing, the governmental institutions and the system of electoral commissions carried out a massive agitation campaign in support of passing the amendments of the Constitution. The spending of the federal budget's means -allocated for informing citizens as part of the organising and running the all-Russian vote- on campaigning is an infringement of article 306.4 of the Russian Budgetary Code (misallocated use of budgetary means).
4. The present agitation campaign differs from the usual electoral campaigns by the participation of the vote's organiser, the Central Electoral Commission. The brand-book of the all-Russia vote, located on the site of the Russian CEC, the agitation goal of the very logotype of the all-Russian vote is clearly stated: "The dynamic form of this logotype represents the soon-to-come positive changes that await Russian citizens thanks to the making of amendments of the Constitution". That goal is fulfilled in the materials prepared by the Central Electoral Commission that clearly contain agitation. In that way, the activities of the Russian CEC relating to the provision of information about the all-Russia vote can to a considerable degree be characterised as campaigning, in the sense of that term given by the Constitutional Court.
5. On that background, during the period of March-May 2020, the opponents of the amendments found themselves factually deprived of the possibility to conduct a widespread campaign. The then more visible group of amendments' opponents - the initiators of the "No!" campaign (The Communist Party of the Russian Federation appealed to vote against the amendments only by 4th June) saw their site being blocked, they were refused on-air representation in conditions equal to those of their opponents. In view of the limitations imposed on street campaigning and on movement within the country, the sole channel left to this group for providing their information was private communication on social networks.
6. In conditions of limited freedom of assembly, citizens were compelled to use new technologies - initiatives about the conduct of "online meetings" appeared. Internet platforms were already seen by citizens as public space, analogical to the streets and squares of cities, that are impossible to fully isolate from political statements.
7. A specific trait of the renewed campaign became the readiness of numerous citizens to report attempts at compelling them to vote; the mass reports of attempts at compulsion started to arrive considerably earlier than it usually does during elections; presumably, it is related to the radical expansion of possibilities for early and distance vote that previously were used by the authorities for compulsion.
8. The expansion of possibilities for early and distance electronic vote is done under the excuse of fighting the epidemic. The Russian CEC, together with the Russian Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing, undertake costly measures to ensure the lowering of citizens' concentrations at the polling stations, partially at the expense of a radical lowering of guarantees to protect their rights of free expression of opinion. At the same time, there has been no reaction by the official bodies in regards to the local authorities' efforts to organise on voting days, lotteries, prize games, bonus distributions etc. Events that despite leading to the obvious opposite consequences - the increase of citizens' concentrations near the polling stations. The authorities are again attempting to change the civic-political motivation to participate in the vote by use of instant material simulation. Such simulation does not support but rather impedes the free expression of will and the citizens' conscious taking of political decisions, it also puts their lives and health under threat. 

Recommendations

1. Since the federal law names the protection of citizens' right to express their free will as the duty of the Central Electoral Commission, we assume that it would be wise if part of that time was allocated to organising debates or discussions of those in favour of the amendments with those opposed to them.
2. With the aim of safeguarding the lives and health of citizens, to forbid on the voting days, the organisation of lotteries, prize games and other polls or surveys that cause the concentration and increase of citizens' contact near the polling stations.
3. As organiser of the vote, the Russian CEC must cease the running of campaign activities; instead of that, efforts must be made towards fighting the abuse of "administrative resources", to provide neutral and objective information about the amendments to the citizens, including an equal presentation of the positions of both proponents and opponents of the Constitutions' amendments, to make agreements relating to information partnership with politically involved structures or, following the principle of equality, to make similar agreements with the opponents of the amendments.
4. The specialised social organisations, together with the companies - owners of social networks and other communication platforms - must develop mutual rules that could protect the field of mass communication from abuse, including when dealing with political issues.