May 13, 2009
Who Is to Judge?
Experts See Medvedev’s New Initiative as a Step Toward Tighter Presidential Control of the Judiciary
By Albina Kovalyova
Russian President Dmitry Medvedev has proposed a new law to the Duma, which if ratified would mean that the chairman of the Constitutional Court and his deputies will be appointed by the Federation Council, the upper house of the Russian parliament, which will act on behalf of the president. The council is already responsible for appointing the judges of the Constitutional Court, but under the current practice, it is these appointed judges who vote to select a chairman.
The proposal has caused a heated debate among legal professionals and experts. While as of late, Dmitry Medvedev has taken a series of liberal actions, some critics believe that the proposed change of procedure is a sign of the government’s tightening grip on the judicial process.
The present procedure of voting in a representative for the Constitutional Court is a process that is done behind closed doors by the members of that court, arguably because the judges are qualified to choose a suitable representative. However, Elena Mizulina, a State Duma Deputy from the Just Russia faction, told the Kommersant daily that the new procedure would be “more transparent” because the chairman would be appointed by the Federation Council. But Nikolai Petrov, a scholar in residence at Moscow’s Carnegie Center, is skeptical of such an interpretation. “I think that the idea that this change would make the procedure more transparent is a laughable and distorted conclusion...I do not think that it is transparent, but a departure from the democracy that existed before,” he said.
Yet the idea that the president’s appointment of the chairman of the Constitutional Court through the body of the Council Federation means tighter control of the judiciary is nothing new. This control already seems to exist, according to Larissa Efimova, a legal advisor to the State Duma. “The members of the Constitutional Court are also picked by the president, so he could have indirect influence on the chairman of the court, which is what happened before. But the president also has an effect on the decisions that are made by the chairman,” she said. The argument supporting this view is that the Russian authorities already have a lot of control over the decisions of the judiciary. The Yukos case is a prime example of a case in which the judges were criticized for being politically influenced in their verdicts.
This proposed change to the procedure of appointing the chairman in the Constitutional Court comes after a series of apparently liberal moves by president Medvedev and his representatives in the legal sphere. Anton Ivanov, the chairman of the Supreme Arbitration Court of the Russian Federation and a close ally of Medvedev, recently proposed to introduce an examination for judges, which would test their knowledge and professionalism. These examinations would be monitored by lawyers, and the examinations would be kept as records for the whole duration of the judges’ careers. Another “liberal” move by the same man, Ivanov, was the dismissal of Judge Lyudmila Maykova on charges of corruption.
These motions, along with the president’s anti-corruption rhetoric and the disclosure of government members’ financial details (including those of their immediate family), signaled that the country was moving in a more democratic, or at least more transparent, direction. The proposed new measure would seem to undermine the independence of the judiciary and the authority of the judges at the Constitutional Court, the key tenets of the “rule of law” state Medvedev is supposed to be building.
Petrov thinks that this proposal is not at all surprising. “I do not see any liberal actions from the president. I see liberal sayings, but these are not at all turning into actions,” he said. In his opinion, the political image of the president as more liberal is meaningless, since it is not mirrored by liberal reforms. The proposed change of procedures in question is an example of an anti-liberal action, and in Petrov’s view entirely in keeping with Medvedev’s past record.
Another important “illiberal” proposal from the president is to prolong the term of the presidency to six years, and the ruling term for the State Duma to five years. This new law would entail changing the Russian constitution, and has been criticized as a step meant to help the current authorities retain their power. Whether this would be Putin, Medvedev or someone else is yet to be seen, but if passed, the law would hinder any further shift toward democracy.
The proposed new decree has also been criticized for giving the authorities the power to use the position of chairman to the Constitutional Court as an instrument of the Kremlin. This broaches the question of the president’s professional suitability to choose a representative for the judges. “The judges of the Constitutional Court have a very high level of trust; all of them separately can have their own flaws and merits, but all of them are representatives of the community of judges. To assume that the president has more insight than the professional community of judges is not a conclusion that works,” Petrov said. However, Medvedev has been trained as a professional lawyer, a background that could, some say, give him enough professional qualification to decide who would make the best representative for the judges of the Constitutional Court.
Yet other critics see the proposal as politically motivated. Efimova thinks that it is possible that the president wants to have more control over the judicial process. “Perhaps the president feels that he cannot change the composition of the court, but perhaps he can have some influence by assigning the chairman of the court,” she said. Many of the current judges of the Constitutional Court were appointed prior to Medvedev’s term in office. Perhaps by appointing the chairman, the president could gain some hold on the decisions of the court that would otherwise be left to those who were appointed by his predecessor.
Perhaps the president was motivated by doubts about the objectivity of the decisions made by the members of the court? Petrov believes that this is hardly the case. “If the president was such a genius as to be able to stand above the interests and positions of various groups, then this would be an absolute monarchy and we would not need a parliament, or a government as an independent body. We would have a monarch which would make all the decisions. I think that this system has been an anachronism for a long time, and we are in essence moving toward it,” he said.