by Gordon M. Hahn
Recent reaction to the Russian president Dmitry Medvedev's proposals to change the system through which the Russian Constitutional Court's chair is selected has been almost universally interpreted as an illiberal move 'unmasking' his increasingly liberal image and polices. The real picture is much less sinister and perhaps a step toward further reforms down the road.
Under the present system, all 19 of the Constitutional Court's judges are appointed by the Federation Council upon presidential nomination. After the court is formed, the judges elect their chair, a deputy chair and court secretary by secret ballot, and these posts are held by the winners for three years. Medvedev is proposing amendments which stipulate that the chair and two deputy chairs (eliminating the court secretary position) should be elected for three years but by members of the Russian legislature's upper chamber, the Federation Council, upon presidential nomination.
Thus, the president already appoints the judges who elect the chairman, and this gives him indirect control over the selection of the chairman (not to mention his potential ability to pressure judges' votes) with little responsiblity for the chair's actions. Under the proposed new system, the president's power remains indirect, balanced by the legislative branch's - that is, the Federation Council's - final voice in the matter, and makes the president openly and directly responsible for the actions of his appointed nominees. The president's power is further balanced by the Constitutional Court judges' retention under Medvedev's amendments: the Constitutional Court's judges retain the power to dismiss, by a majority of two-thirds of the court's judges, the chair and his deputies if five or more judges censure them for failing to carry out their responsibilities or abusing their powers.
Let us recall the the chief justice of the U.S. Supreme Court - the equivalent of the Russian Constitutional Court - is nominated for life by the president and approved by the Senate, the equivalent of Russia's Federation Council. In addition, the system proposed by Medvedev for the Constitutional Court has been in practice for years in the Supreme and Arbitration Courts, which are viewed by many as more independent in ther decisions than the Constitutional Court.
What really compromises Medvedev's proposed system is the executive branch's control of the legislative branch established by the executive branch's power to appoint the governors who appoint half of the Federation Council and its use of administrative resources during elections to shape regional parliamentary majorities, which elect the other half of the council's membership. Thus, the present step could be preparing further reforms down the road should the electoral process be made more free and fair.
Moreover, further liberalization in the judicial branch was evident in actions, not mere words, preceeding Medvedev's new proposal. Anton Ivanov, chairman of Russia's Supreme Arbitration Court and a close ally of Medvedev, recently fired a corrupt judge and proposed examinations for judges to be administered by lawyers. President Medvedev suggested a judicial vetting to be controlled by retired judges. Furthermore, in addition to the proposed amendments to the law 'On the Constitutional Court', Medvedev is preparing amendments to the two other laws that form the legal foundation of Russia's judicial system, so we should wait to see what those amendments change.
One year on in a presidential administration in Moscow is a blink of the eye. Recall that after his own first year in power in the late USSR, Mikhail Gorbachev had not adopted a single serious political or even economic reform. Thus, it is not surprising that Gorbachev recently praised Medvedev's first year, where he was often critical of Putin's rule. Gorbachev is expecting more reforms, and so should we.
/Dr. Hahn is author of the well-received books Russia's Islamic Threat (Yale University Press, 2007) and Russia's Revolution From Above, 1985-2000 (Transaction Publishers, 2002) and numerous articles in academic journals and other English and Russian language media. He has taught at Boston, American, Stanford, San Jose State, and San Francisco State Universities and as a Fulbright Scholar at Saint Petersburg State University, Russia. Dr. Hahn also has been a fellow at the Kennan Institute and the Hoover Institution./
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