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Constitutionally Eroding the Rule of Law

William Partlett, Columbia Law School

Recent work by Kim Lane Scheppele, Sam Issacharoff, David Landau, and myself has focused on the ways in which constitutional change can be used to render regimes less democratic. In Russia today, we are seeing constitutional change eroding another key liberal value: the rule of law.

With very little fanfare or publicity, the Kremlin is currently pushing through a constitutional reform that will subordinate the commercial courts — the most independent and innovative part of the Russian judicial system — to the courts of general jurisdiction (general courts). This might sound like a mundane streamlining of the Russian judicial system. It is not. This constitutional amendment will significantly undermine judicial independence and the rule of law in Russia.

Pockets of judicial innovation

After the collapse of communism, most Russian cases–including crimes, civil lawsuits, and cases involving administrative offenses–were decided by courts inherited from the Soviet period. This court system and many of its judges retained the traditions of Soviet justice, including highly formalistic decision-making and strong deference to the government. There were two pockets of judicial innovation, however, in the immediate post-communist period: The Russian Constitutional Court and a multi-level system of commercial courts. The Russian constitutional court met a dramatic end in September 1993; the commercial courts are currently meeting a far less dramatic—but still momentous—end today.

The commercial courts were designed to consider cases involving economic disputes arising under Russia’s new capitalist economic system. Pioneering work by Kathryn Hendley has shown that the commercial courts have become a bright spot in the Russian judicial system. These courts were staffed with judges who had specialised backgrounds in business and economic law and worldviews that valued the importance of protecting property rights from legal attack. For instance, the current chair of the commercial courts — Anton Ivanov – is a close associate of former President and legal reformer Dmitry Medvedev. Since taking the chairmanship in 2005, Ivanov has pushed the commercial courts to be more innovative, pro-business, and transparent in their decision-making. Consequently, the commercial courts are far less deferential to the government than the general courts. For instance, the Russian government has less than a 50% chance of winning tax cases in the commercial courts. Investors and corporations have increasingly sought out the commercial courts to protect themselves from malicious prosecution by either the government or business enemies (or the two in tandem).

Constitutional erosion

In June 2013, Putin proposed that the commercial courts be subordinated to the general courts. Putin explained that this “merger” would guarantee uniformity and equality in court cases. This justification, however, masks a far more insidious goal: To create what Will Pomeranz calls a “judicial vertical of power” that will increase the ability of the Presidential administration to use the courts as ‘transmission belts’ of policy. This vertical is in turn aimed at helping the federal government extract additional tax revenue at a time when the economy is not growing quickly enough to meet its spending commitments. It is also a tool for ensuring that the ongoing anti-corruption campaign does not spiral out of control and undermine the Kremlin’s support base.

Elite push back?

A growing number of legal and political elites associated with Medvedev–and buttressed by demand for property rights protection from a growing entrepreneurial class–are pushing back against this merger. Seven commercial court judges have resigned in protest and more than eighty law firms have criticised the reform in an open letter claiming that it will subordinate the commercial courts to the “parochial” general courts. Key businessmen have also spoken out against the reform, arguing that it is likely to deprive private businesses of protection against malicious prosecution, a strategy used by the government and private interests to take over companies. The current chair of the commercial courts also has publicly stated that the merger will “destabilize” the Russian judicial system.

Although this elite will likely attempt to mobilize to seek to stem the damage during the implementation of the court merger, much of the damage is already done. Once formal appointment power for the new unified court is transferred away from Chairman Ivanov, the reforms and innovations of the commercial court will be at the mercy of the new court leadership. This constitutional reform is therefore another reminder of the importance of formal constitutional change in the playbook of what Kim Lane Scheppele calls the “new authoritarians.”

Suggested Citation: William Partlett, Constitutionally Eroding the Rule of Law, Int’l J. Const. L. Blog, Jan. 8, 2014, available at: http://www.iconnectblog.com/2014/01/constitutionally-eroding-the-rule-of-law/

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Published on January 8, 2014
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