Gall, Caroline von

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Regime Adaptation Within Russia’sJudicial ElitesCaroline von Gall 2024-02-08T15:09:00December 25, 2023, marked the 30th anniversary of the Russian constitution. InDecember 1993, following months of intense confrontation between the old SovietCongress of People’s Deputies and the newly elected president Boris Yeltsin, Yeltsinfinally prevailed and imposed the new liberal constitution that quickly entered intoforce, establishing liberal human rights, the rule of law, and separation of powers.30 years later, the Russian constitution still plays an important role within theRussian authoritarian regime. However, the 2020 constitutional amendmentsmarked a turning point for Russian constitutionalism. Even though checks andbalances in the 1993 Russian constitution had always been weak, in 2020, theRussian constitution finally lost its restraining function concerning the powers ofthe president. The main goal of the amendments in 2020 was to abolish the termlimit for the president to allow President Vladimir Putin to stay in power beyond2024. The constitutional amendments also weakened the Constitutional Court as anindependent institution.But even though constitutionalism finally collapsed in 2020 and the ConstitutionalCourt lost its independence, the chairman of the Constitutional Court, Valery Zorkin,is still a significant and powerful figure within the regime. Zorkin has maintained hisposition over time by granting Putin authoritarian legality through favorable rulingsand approval of his theory of state and law, elucidating constitutional policy in essaysand speeches.Zorkin’s current role is even more remarkable as he had already been the chairmanof the Constitutional Court during the 1993 constitutional crisis. However, his rolein 1993 was markedly different from that in 2020. In 1993, Zorkin was a strongdefender of legalism and opposed Boris Yeltsin’s power grab. Back then, Zorkinstood for the constitution, the rule of law and the separation of powers, and rejectedYeltsin’s claim to power based on popular support. Fast forward three decadesto 2020, Putin made similar references to the will of the people and people’ssovereignty in order to justify changes to the constitution which ran counter to theletter and spirit of the original text. On this occasion, Zorkin did not oppose.Zorkin’s theory of state and law, along with his personalist interests, help tounderstand the role of the constitution and the Constitutional Court in the Russianauthoritarian regime. During Putin’s fourth term, which began in 2018, and waspropelled by the 2020 amendments, the regime’s personalization has progressed.In this process of regime personalization in Russia, formal institutions have beenconsistently undermined, with personal relationships becoming increasinglydominant. Today, positions are primarily allocated based on the principle of loyalty.- 1 -Zorkin during the 1993 Constitutional CrisisDuring the 1993 Russian constitutional crisis, Zorkin actively participated in theconfrontation between the elected President Boris Yeltsin and the Congress ofPeople’s Deputies on the question of who was to decide on the new constitution.This culminated on September 21, 1993, when Yeltsin signed Decree No. 1400. Thisdecree ordered the Congress of the People’s Deputies and the Supreme Councilof the Russian Federation to cease their activities and called for new parliamentaryelections to be held in December 1993. The decree was a clear violation of theconstitution then in force. Zorkin appeared on television to explain the situation,warning of chaos, anarchy, and the risk of dictatorship. He then presented himself asthe true defender of the constitution in force.When Yeltsin won in October 1993, Zorkin was forced to resign from the post ofchairman and the Constitutional Court dissolved, but Zorkin continued to addressconcern about the “terrible legal nihilism”. Zorkin criticized Yeltsin’s proposal forthe new constitution as giving too much power to the president. He stated that thenew constitution reminded him of the old communist constitution which gave aleading role to the Communist Party. “But then there was a whole party. Now it isone man.” (for a closer analysis of the 1993 crisis here).However, Zorkin was later reinstalled and, in 2003 was once again elected chairmanby his fellow judges. Kim Lane Schepelle recalled a rumor, circulating at that timethat the judges had elected Zorkin to send a warning to the newly elected PresidentVladimir Putin not to overstep his constitutional powers. Zorkin was clearly seen as astrong veto player in a potential clash with the ambitious new president based on hisopposition to Yeltsin in 1993.In hindsight, this proved to be a misconception. Zorkin swiftly became a loyalsupporter of President Putin, approving all of Putin’s accumulations of powers.Zorkin explains the discrepancy between the liberal text of the constitution andgrowing authoritarianism in legal practice through his constitutional theory of the“living constitution.” The solution is seen in a balance between the duties derivingfrom the constitution and the protection of the country. The concept demands a“dynamic interpretation” of the constitution whereby the constitution is only appliedas far as “present conditions” so permit. In effect, the concept gives the legislatora wide margin of interpretation to use the constitution according to political needs.When Putin overruled constitutional principles such as separation of powers andfederalism through legislation on regional government and parties, Zorkin defendedthis on the grounds of the need to combat terrorism, instability, and other threats.Zorkin frequently warns against chaos and lawlessness as characteristics of the1990s´, and often recalls Yeltsin’s 1993 coup, which resulted in social atrocities andbloody conflicts.Within a heterogenous group of judges, chairman Valery Zorkin managed to ensurethat his position prevailed over other dissenting judges. In response, Zorkin wasrewarded for his loyalty by the regime. The legal rules on the chairmanship werecontinuously amended in order for Zorkin to stay in power. While from 1991 to 2009,- 2 -the judges of the Court elected the leadership of the court, since then the chairmanhas been de facto appointed by the federal president. And when Zorkin reached theage limit of 70 years for constitutional judges, the law was changed so that the ruleno longer applies to the court president. All this suggests that Zorkin is personallyselected by Putin.Until 2020, an assessment of this policy of compromise may yield ambivalentresults: Zorkin enabled the authoritarian regime to use the constitution and theCourt for authoritarian purposes. Nevertheless, one may argue that with his policyof compromise, Zorkin’s approach also helped to secure at least some degree ofconstitutionalism. Until 2020, the Court was neither suspended for another timeas in 1993, nor was the constitution amended to legalize authoritarian rule. TheConstitutional Court instead became an important and respected institution within the(authoritarian) system. For some time this gave hope that constitutionalism in Russiamay eventually succeed.The collapse of constitutionalism in 2020However, when authoritarianism became stronger and more personalized between2012 and 2020, authoritarianism finally prevailed over constitutionalism. When theconstitution contained no option for Putin to stay in power after a second consecutiveterm in office, the president used his power to amend the liberal text. Unlike in 1993,in 2020, Zorkin and the Constitutional Court did not defend the limits set by theconstitution. By legitimizing the amendments, the Constitutional Court preserved notonly Putin’s power but also the position of the Court’s chairman within the system.Valery Zorkin’s position was further strengthened. Since 2020, the position of thechairman of the Constitutional Court is mentioned in the constitution (Article 125Paragraph 1). What is more, the provisions on the appointment as previously laiddown in the law have been incorporated into the constitution.The case of Zorkin shows how elites prioritize their own survival and therefore do notoppose a repressive and aggressive regime, most likely because they fear revengefrom liberal peers and victims of the system. And since the war against Ukraine,elites have another reason to stay loyal. For those who fear being held responsiblefor a war of aggression and war crimes, Putin is the only “guarantor of stability.” Untiltoday, Zorkin continues to defend the president. On May 23, 2023, during a televisedworking meeting with Putin, Zorkin presented the president with a historical mapsuggesting that Ukraine was a legitimate part of Russia. In doing so, Zorkin supportsthe President’s justification of the illegal Russian aggression against Ukraine andbecomes another time his accomplice in this war.But why did Zorkin not become a stronger opponent of Putin earlier on as he hadbeen to Yeltsin, and as his peers probably expected from him in 2003? A probableexplanation leads back to the year 1993. It has been convincingly suggested thatfor Zorkin, and for many of his contemporaries, the events of 1993 were a strongpsychological trauma. It has therefore been argued that the 1993 events “burned”Zorkin, causing him to avoid taking any more risks.- 3 -This blog post is based upon a forthcoming article in the journal Russian History.- 4 -

Regime Adaptation Within Russia’s Judicial Elites

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Regime Adaptation Within Russia’s Judicial Elites

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