Abstract

This paper considers the role of the Second Russian Constitutional Court in resolving center-regional conflicts from 1995 to 2005. Previous work by this author indicated that the central central government and individual actors were favored over regional actors in centerregional conflicts between 1995 and 2003. This study expands the period studied and now spans most of the Putin era, with its “verticalization” of the federal system. This study includes an analysis of basic statistics on number of cases brought before the Court and what actors as well as binomial regressions to test the effects of time on potential favoritism by the Court. In a departure from previous work, additional analysis is included to determine the actual probability of the Court favoring specific actors in center-regional conflicts.

Introduction

Judicial independence is a widely debated (and some would say, oxymoronic) concept in both legal studies and political science research; this is because many would argue that with no independent  enforcement  capacity,  the  judicial  branch  of  any  government  cannot  be  truly independent. The executive branch serves as the actual enforcement power behind courts and the various interests involved in cases must either be coerced into accepting the rulings of courts by the executive, or already accept that a court has legitimate authority and adopt the principles of the decision. But if the executive branch refuses to enforce decisions or outside interests feel that they can ignore the decisions, the court’s independence and authority vanishes. Are courts really independent entities under these conditions? Many researchers still say yes, and how courts establish independence and legitimacy is a question of long standing in both theory and research literature.¹Due to recent changes in the political landscape since the end of the Cold War, this question has again become controversial as a number of potential “test cases” for theories of independence have surfaced.

The “Third Wave” of democratization in the former Soviet republics, Eastern Europe, Asian and South American countries (see Huntington 1991) has given rise to a corresponding wave in research on establishing the independence and legitimacy of new courts, particularly constitutional courts. Constitutional courts are vital in establishing democratic regimes due totheir commitment to protecting constitutions and basic laws that are the foundation of the rules and structures of the new regime. Many of these “Third Wave” countries have limited experience with rule of law, giving constitutional courts an even more important position in these countries than in long-standing democracies. But coupled with this important job is the issue of establishing the legitimacy and authority to hand down decisions in the first place. If this legitimacy is not established, there is little possibility of protecting the constitution and basic law against challenges. Consequently, courts in these societies are between a “rock” of needing to protect the foundations of a new regime and a “hard place” of gaining legitimacy from outside interests that may have reasons for ignoring the rules and structures of the new order. Research has focused on what processes could create legitimacy under these circumstances.

The research on establishing legitimacy and independence of new courts has tended to fall into two camps. The first camp focuses on the formation process of new courts including which interests were involved in creating the courts; powers assigned to the courts such as abstract review, concrete review, or both; and who has standing to approach the court, when and on what issues (see Brzezinski 1993, Halmai 1995, O’Malley 1996, van Huyssteen 2000, Schiemann 2001, Smithey and Ishiyama 2000, 2002; Herron and Randazzo 2003, Thorson 2004). The formation literature has been extremely useful for determining the initial legitimacy of courts; as noted by Schiemann 2001, interests that were involved in the formation process of Hungary’s Constitutional Court were highly convinced of the legitimacy and impartiality of the resulting institution. This led to the Court’s first incarnation being used as a major forum for the resolution of conflicts within central institutions and between the executive and legislative branches in particular. However, this was the first Hungarian court and later incarnations of the court showed much less independence or perceived legitimacy; most of the initial justice appointments had termed out by the late 1990s and the later incarnations of the court were much less inclined to make strong decisions that went against state interests (Schepple 2003). While formation has definite usefulness for explaining the beginning years of constitutional courts, it has not been as useful for considering independence and legitimacy later in a court’s tenure.

The second camp of literature on this issue has considered the functions or actions of courts in detail after courts are formed (see Sharlet 1993, Hausmaninger 1995, Dickson 1997, Langa 1997, Barry 2001, Epstein, Knight and Shvetsova 2001, Schepple 2002, 2003; Herron and Randazzo 2003, Klug 2002, Thorson 2003, Treygar 2004, Berat 2005, Smithey 2006; Trochev 2004, 2006; Pinnell 2005, 2006, 2007; Ruibal 2008). The literature in this section has naturally taken time to develop given the newness of these courts and the need to allow them to become institutionalized and make decisions. But this literature is probably better adapted to answering the ultimate question of how new courts in new regimes gain legitimacy, given the fluidity of all institutions in these societies and the competition of interests. It takes time for institutions to become entrenched in a society and the intended powers and objectives of constitutions and basic laws will change during that time, for reasons of political expedience, economics and other issues. As noted above with the Hungarian Constitutional Court, the powerful court changed radically over time as judges termed out and were replaced with justices that felt more politically dependent on the interests that appointed them to the bench (Schepple 2003, 227). Because time and interaction of courts with outside interests may be vital to their ultimate independence and authority, research has focused on issues such as judge appointments over time, the types of cases brought to the court, whether or not they were accepted, and the ultimate decisions; and acceptance and implementation of the decisions by other branches of government or the public after they were issued. This research has shown that along with the Hungarian case, many new courts have gained or lost legitimacy and independence as they function over time.

Research on the legitimacy of new courts has also led to overarching theories of how courts should behave in new regimes if they have the goal of creating legitimacy and independence. Two examples are worth mentioning here. Filippov, Ordeshook and Shvetsova’s 2004 theoretical work on federalism sketches out a theoretical scenario where central courts would exist primarily to coordinate interests in a new federal system and establish equilibria between these interests. Strict constitutional protection may therefore not be the primary objective for these courts given their need to establish legitimacy with outside interests. Working with this understanding, I created a theoretical model in 2007 to test the idea that constitutional courts would take outside interests into account in making decisions, with the ultimate goal of increasing their legitimate authority with these interests (see Pinnell 2007). The conclusion of this research was that the actions of courts (decisions) did ultimately affect their legitimacy and authority, and did so more than the initial formation of these courts. The results of this study also showed that courts could increase or decrease their authority with their actions over time.²

These two pieces of research are important in that they make explicit assumptions about court behavior. First, courts will not be impartial in their initial stages of existence, but deliberately favor some interests over others in making decisions. For example, courts would favor central government interests over regional interests when division of powers and federalism are issues. Second, over time, courts may begin to alter this behavior by ruling against outside interests, even the most powerful ones that enforce court decisions; this could be an indication of greater independence and that the court is confident that it has legitimacy in society. By explicitly assuming favoritism in courts, it may be possible to consider not how well courts protect constitutions and basic law, but how they gain the legitimacy to do so in the first place.

This brings us to the research question for this paper. Is it actually possible to measure favoritism in court decisions towards particular interests? If favoritism arises in new court decisions, who will be favored? I have focused on federalism as an issue in my research because of its heavily political nature, the various interests and positions of power involved (central executives and legislatures, regional executives and legislatures, citizens and groups) and because theses for how favoritism will surface can be easily generated. Simply put, the court will favor the more powerful interest in a dispute; in federalism, this tends to be the central government. The next question is how to test this thesis, and I do so here using a quantitative analysis of court decisions from the Second Russian Constitutional Court during the first eleven years of its existence (1995-2005). This period of time includes most of the tenure for presidents Boris Yeltsin and Vladimir Putin and covers significant fluctuations in power between the central and regional governments in the Russian Federation.

Before considering the research, some background on the Russian Federation and how the Second Constitutional Court has functioned within it would be helpful. This information is in the next two sections. After this background, I outline the research done for this paper by describing the data and the models used for testing whether or not favoritism figures in court decisions. Finally, I conclude with some discussion of the research and its implications.

Russia and Its Evolving Federal System: 1992-2005

The evolution of federalism in Russia began with the dissolution of the republics under the USSR from 1990-1991. During this period, not only did the Baltic and Caucasian republics assert their sovereignty and independence, but several “autonomous republics” (ASSRs) within the Russian Federated Soviet Republic (RSFSR) did as well. This latter trend was actually encouraged by Boris Yeltsin, who as the newly-elected president of the Russian Republic encouraged regions within Russia to assert sovereignty to put pressure on USSR President Mikhail Gorbachev to give all of Russia greater autonomy (Shlapentokh, Levita and Loiberg 1997). After the collapse of the USSR many of these regions within Russia did not end their calls for greater autonomy, but pushed even harder for independence or at least greater control over their internal affairs. To maintain territorial integrity within the new Russian Federation, Yeltsin and the governments of the republic-level, oblast-level and okrug-level regions signed a series of agreements in 1992, now known as the Federation Treaty. This set of agreements maintained the three types of regions and gave republic-level regions with titular national groups greater control over ethnic and minority rights, natural resources, and fiscal matters than they had as parts of the USSR. But not all regions were willing to sign the Treaty; notably, Tatarstan, one of the loudest proponents of independence, refused to sign the treaty and instead held a referendum for independence which passed by a wide margin. The response by the Yeltsin Administration was to negotiate a separate, bilateral treaty with Tatarstan, giving it greater powers than the republics in the Federation Treaty (Kahn 2002, 151-157). Seeing the greater advantages given to Tatarstan, other regions began to push for their own bilateral agreements. A federal structure was created out of these agreements that was asymmetrical, with regions having different powers in relation to the center, and different powers in comparison with each other.

Compounding the problems of this new federal system was a weak central government, which could not pass federal legislation in any expedient fashion from 1995-2000. Federal constitutional laws setting the foundation for treatment of natural resources, environmental protection, minority rights and other vital issues waited while a State Duma made up of several parties and groups and a regionally-controlled Federation Council either could not or would not agree on legislation. While this occurred, regional governments passed their own charters and legislation on these issues. By the late 1990s, conflicts between federal legislation that was passed and older regional legislation led to what was called the “War of Laws;” the federal government began to protest to regions that they needed to bring regional charters and laws in line with the Russian Constitution and federal legislation, but the regions argued that their laws held precedence and often ignored the federal demands for reform (Kahn 2002, 174-176). A major crisis in the federal system existed at this point, between regions, who supported the Federation Treaty, bilateral agreements and their regional laws and the federal government, whose understanding of the federal system depended upon the constitution, federal laws that were now being passed, and the principle of supremacy of federal over regional law.³

The Russian Constitutional Court (CC) largely refrained from being involved in the conflict between the federal center and the regions until the late 1990s, when particular cases brought to the CC allowed consideration of this question. Because of its particular requirements on standing to approach the CC, the Court could not consider this question until either the regions or part of the central government brought a case.⁴The ability to enforce the decisions of the Court was also a major factor in why only a few cases were considered during the “War of Laws.” The federal government was fiscally and structurally weak in comparison with many of the regions that refused to conduct legal reforms, and did not have the necessary “sticks” to force change. This situation would change in 2000.

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