Constitutionalism in formerly Soviet countries
In order to correctly address the challenges facing constitutionalism in post-Soviet countries,Footnote 1 it is necessary to understand what constitutionalism means and how it is perceived in these countries. This vision will be tested against the background of accepted accounts of constitutionalism on the one hand, and against the background of the major challenges facing post-Soviet states on their path toward building sustainable democratic societies, on the other.
Despite the lack of consensus in defining constitutionalism and the considerable abstractness of all concepts that the term denotes, there are certain key aspects that all of these concepts share. The shared aspects pertain to the mode in which government is to be organized or constituted: constitutionalism is seen by many contemporary scholars as a set of principles, beliefs or values associated with organization of government.Footnote 2 The notion of constitutionalism, if we take the historical, anthropological perspective, is also necessarily associated with self-government,Footnote 3 and in today’s context it is inseparable from being associated with democratic governance. Yet, one attribute of constitutionalism, which is probably the epitome of its notion, is the function of imposing limits on government.Footnote 4 According to Giovanni Sartori, the birth of constitutions in their contemporary incarnation essentially owed to the rationale of restricting government back in the era of first bourgeois revolutions.Footnote 5 While new constitutionalism has with time acquired a number of other connotations, it is still essentially associated with the ideals specified by Sartori, namely limited government, rule of law and human rights.Footnote 6 Indeed, if one was to provide a conventional definition of constitutionalism, these elements would inalienably be part of such definition.
Against this background, the evolution of constitutionalism in the post-Soviet area, since the beginning of transition in the early 1990s, has failed to meet the definition in several ways, but most importantly in that it continuously lacked sensitivity to the most essential aspect – limit on government. A closer look at the path of transition may well reveal the patterns. To start, as a famous student of modern Russian politics has noted, constitutionalism in this country has at best marked a trajectory from ‘sham to pseudo constitutionalism.’Footnote 7 To be fair, this assessment is pertinent to all the other republics, though to be more precise, some of them, especially the Central Asian states, have by now rather made a trip from sham to sham constitutionalism. As in Soviet times, when constitutions in the federal state, as well as in each constituent republic of the Soviet Union existed without a little implication of limiting government, constitutions without constitutionalism are the paradigm also today in virtually each post-Soviet country. The path of deviant constitutionalism, though, has produced a very different and unique constitutional reality, which has to be scrupulously observed because many answers to our inquiries are hidden in the complexity of its structure.
Democratic constitutions emerged in the post-Soviet area following the demise of the USSR in 1991. Inspired by the democratic euphoria of the epoch, these constitutions embodied the most progressive ideals of the time, reflected in both the stipulation of rights and in stipulation of institutions of governance. The rights’ sections of these constitutions went to include a wide array of known freedoms and rights without a concern of the states’ capacity to stand for these and most probably sometimes without even a proper comprehension of these rights beyond what their declaratory meaning was. The macro-political institutions, provided by the constitutions, came as transplants from existing Western constitutions, and in many cases they appeared non-demanded, irrelevant and non-functional.
Constitutional courts were created in all but one of the states – Turkmenistan. Some of these courts, especially the earliest ones, emerged as the most empowered courts in the world.Footnote 8 The emergence of strongly empowered constitutional courts was perhaps the starkest of the patterns of constitutional romanticism that these nations lived in the beginning of the 1990s. Romanticism ended in October of 1993 when President Yeltsin of Russia ordered shooting on the retro-minded Parliament and suspended the defiant Constitutional Court. This single significant event signaled a shift in constitutional path that the countries in the entire region had taken, and set up a now familiar pattern. The Constitutional Court in Kazakhstan, which had ‘dared’ to repeatedly decide against the will of the incumbent leader, was taken out of the Constitution by President Nazarbayev in 1995.Footnote 9 The substitute institution, which is formally on the scene until our days, is a much weaker body called Constitutional Council. In Belarus, Lukashenka forced the resignation of justices starting in 1996, by when the Constitutional Court had been actively involved in striking down anti-democratic legislation by the President.Footnote 10 Elsewhere, the constitutional courts which came in the age of post-romanticism, appeared considerably less powerful in terms of their institutional settings and definitely more cautious in terms of judicial independence.
But the emergence of constitutions nevertheless had a great importance, albeit symbolic. It marked a new historical beginning; besides that of independence, this was a beginning for democratization, so strongly believed in at the start of the 1990s. Constitution making, in this context, was largely a transitional instrument, and the new constitutions, as in many other cases of transition, came to perform as road maps to highlight the trajectory from the past and to the future.Footnote 11
All this in mind, the growing erosion of democratic euphoria proves that even in the beginning of the transition the phenomena of democracy and constitutionalism were not quite understood in the formerly Soviet republics by either the polities, or the elites. These terms symbolized, rather abstractly, the path from a system to depart and the one to go towards, both represented as ideal types in the people’s minds. As transitional road-maps, the constitutions’ meaning was limited to framing of the rules of the game by which the new social organism shall be guided.Footnote 12 Such an understanding of constitutions as merely collections of rules stayed embedded in post-Soviet societies until now, while no sense of intrinsic constitutionalism came into sight or got developed. By now, the peculiar vision of constitutionalism in Russia and other post-Soviet countries is based on a central premise that political processes in a state are subject to regulation by a written document, and that the latter draws the scheme and provides for the major procedures for implementation of political power. Apparently, this vision has all the rights to be valid. After all, it is hard to challenge the statement that constitutions are meant to organize the distribution and implementation of power. Is this not, finally, the way in which political processes are regulated in constitutional democracies?
If so, one could indeed observe a certain degree of ‘constitutionalism’ achieved in some formerly Soviet countries. For one, Richard Sakwa shows that the authorities in modern-day Russia are to a large degree bound by the frames of the Constitution and that ‘the letter of the Constitution is the ground over which much of politics in contemporary Russia is fought.’Footnote 13 However, even if we take this status as a pattern of a distinct ‘post-Soviet constitutionalism’, it will definitely fall short of even the minimalist account of constitutionalism as provided above.
As it was mentioned, the statement that constitutions should draw the contours of governments is difficult to challenge. In a paper which has perhaps become a classic of this discussion, Giovanni Sartori undertook a historical, contextual analysis of constitutions. Having underlined that the essential institutional designation of a constitution was to serve as a fundamental set of principles which restricted political power, Sartori yet suggests that the ideal of the constitution has turned to degenerate with time and that what constitution means now is not only its original and essentially the most important element of bill of rights, but also simply a plan of government.Footnote 14
However, the recognition of the validity of the view that constitutions mean ‘charts’ or ‘plans’ of government in no way automatically entails that this view of constitution can persist in a detachment from the other essential, if not the most essential, meaning of the constitution: limit on government. In this light, it is to be stressed that a constitution’s designation as an organizational chart for a government should not be viewed as its sole valid raison d’être and that whenever we think of constitutions as organizational charts, the other, the ‘nuclear meaning’Footnote 15 and the ‘telos’Footnote 16 of constitutions should never be forgotten and should essentially be the proper, underlying ideological framework for the government. Then, this is exactly the mindset that is on the short side in the post-Soviet constitutional culture.
Having contemplated that the post-Soviet nations’ grasp of constitutionalism, in the minds of both the elites and the populace, is hardly compatible with the accepted accounts of constitutionalism, I turn to the question whether the described post-Soviet understanding and interpretations may be justifiable in light of the main challenges facing these societies. Democracy in post-Soviet countries is threatened not by the lack of formal constitutional regulation, but by the deficit of sensitivity to the principle that constitutional regulation is conceptually intended at restriction of political power. In essence, this is due to the lack of an inherent feeling of constitutionalism and democracy which transitional societies experience. The transition from Communism in these countries has so far resulted in incorporation of the formal structures of the democratic system, its basic engineering and the written constitutions, whereas not much progress has been made in understanding the core, ‘molecular’ structure behind democratic constitutions. As a result, democracy here is understood largely as a mere procedure for generation of political power and of governmental empowerment, while the role of constitutions is understood to be in providing for the basic rules of that process. Unsurprisingly, the discipline of constitutional law in post-Soviet universities is up until now often called ‘state law’, not ‘constitutional law.’
In the succeeding part of this review, I analyze some of many obstacles to development of constitutionalism in the post-Soviet region. These obstacles pertain to the dimension of political and legal culture which represents the inherent limitations on the competency of judges to promote constitutional democracy, and to politics which represents informal pressure on courts. A special attention is furthermore paid to institutional design. I highlight some regulatory limitations on the courts’ competency to contribute to constitutional democracy and offer a perspective on redesigning of post-Soviet constitutional courts.
Constitutionalism endangered: rethinking positivism, legalism, politics and institutional design
The obstacles facing constitutional and other higher courts in their endeavor to promote constitutionalism can be separated into certain groups. First, constitutionalism is undermined by the prevalence of a legal culture which carries the heavy influence of both continental legal positivism and a heritage of Communist legalism branded as ‘vulgar Marxian positivism.’Footnote 17 Secondly, constitutionalism is suffering in the hands of irresponsible political leaders who abuse constitutions and exploit the prevalent patterns of legal formalism to reach their political goals. Thirdly, constitutionalism is also somewhat weakened by the institutional design of constitutional judicial review where courts often appear incompetent to respond to challenges facing constitutional democracy.
Legal culture: the pathologic formalism of the post-Soviet judiciary
To start, one should understand the extremely positivist and legalistic vision of constitutions and law in general in post-Communist environments. In this legal culture law has never been perceived as an objective virtue – jus, but solely as a man-made rule – lex, and the perception of the latter is said to have ‘seriously complicated the development of post-Soviet constitutional systems.’Footnote 18 As such, the law – lex never performed as an integral part of a concept, constitution, or any supra-statutory authority, but only as a procedure. In Soviet times these procedures were stipulated to regulate the programs and policies which were born in the minds of party bureaucrats. By the strong and invisible force of path-dependency, the higher principles of democracy, expressed in modern written constitutions, are given a solely procedural extension through the laws on, let us say, demonstrations and rallies, elections, media, etc., where the provision on the freedom of expression and assemblies of the written constitution acquire a ‘procedural’ shape: demonstrations and rallies can be held in this or that time, in this or that place, in this or that way and so on. The meaning of the law of freedom of assembly ends here, as the legal culture is missing a conceptual vision of constitutional law. Similarly, the electoral law, in the eyes of post-Soviet judiciary, means nothing beyond for example the statutory prescriptions of how and in which way the candidates are registered, electoral commissions composed, votes counted.Footnote 19 Constitutional law of freedom of expression is often substituted by administrative law regulating media and press, etc.
Consider a case, A v B,Footnote 20 where the applicant A, a political party, applies to a general court with a complaint against the municipal body (B). B has repeatedly violated A’s constitutional freedom of assembly by refusing, for different reasons, to allow a demonstration organized by A to be held in the capital city. For several consecutive days, B had found different reasons to prohibit holding of a rally in the traditional place for political assemblies known as Our Hyde Park. After all, when no more ‘valid’ reasons for refusing the demonstration could be thought of, B had authorized the demonstration to be held in another location while allowing the pro-governmental party’s demonstration to be held in Our Hyde Park. For the demonstration of A, B provides a semi-constructed square in a remote district, on the brink of the city and the nearby village. That square is still under construction, and the bulk of heavy construction machinery occupies most of the square in such a way that no big crowd can gather there. In a complaint to the lower court, A argues that allowing its pre-electoral public assembly only in a remote district of the capital city and in a square which is not appropriate for a political assembly is in breach of the fundamental constitutional provision on freedom of assembly. Meanwhile, A argues that the principles of equality and impartiality were violated because Our Hyde Park was given to the pro-governmental party while it was refused to A.
The general court (GC) reviewing the complaint finds that there is no violation, and refers to an article in the law on assemblies which provides that the municipal body (B) can refuse holding of a political rally in a particular area if the latter is reserved for another public event. The GC also says that the law provides that if the requested area is already reserved for another demonstration, the municipal body can provide an alternative area for the demonstration. A argues that the article of the elections law implies that the ‘alternative area’ should be an equally good place for demonstration, not a remote place at the city’s outskirts, and that the place needs to be appropriate for public gatherings. GC rejects this argument and says that this is not implied by the law, and hence B was free to assign any other area for the demonstration.
Through similar patterns of legal formalism, the substantive constitutional law of political processes gets a status of a routine administrative law, which is governed by the letter of the statutory law, but never by the spirit of the law, not even speaking of higher law. Here, constitutionalism and democracy are reduced to the level of a procedure. Such ‘procedural vision of democracy’ is in the core of the post-Soviet conception of constitutionalism.
Political legalism
The procedural treatment of democracy is exploited as a practical instrument of political abuse. As the political culture misses inherited understanding of constitutionalism in its conventional meaning and as the idea of a constitution ends up denoting a plan, constitutions in post-Soviet republics transform from an instrument of restricting state power to an instrument of state empowerment. Sartori would probably consider such practices as an essential feature of nominal constitutions – the ones which serve as merely ‘collection of rules which organize but do not restrain the exercise of political power in a given polity.’Footnote 21 Disclosing the nature of ‘nominal constitutions’, Sartori refers to the following definition, found in another work: ‘The constitution is fully applied and activated, but its ontological reality is nothing but the formalization of the existing location of political power for the exclusive benefit of actual power-holders.’Footnote 22 In such circumstances, any written law, including written constitutions, are subject to manipulation by self-electing political elites for the purposes of reproduction of their power.
The examples are numerous. Political technologies of power reproduction in post-Soviet countries rely not only on massive abuse of public office and use of administrative resources, but on employment of law-enforcement capacity based on a crude and legalistic treatment of a statutory law, created by the same leadership and fine-tuned for the exclusive consumption of the power-holder. Interestingly, this practice, as a rule, tries to avoid political trials,Footnote 23 as these are too obviously associated with terror and repression.Footnote 24 Post-Soviet leaders avoid openly oppressing their opponents: it is more efficient to imitate and covertly undermine democratic practices than to withdraw from them.Footnote 25 The typical ‘technologies’ of abuse include banning opposition’s demonstrations and rallies for the reason that they are not authorized or did not comply with the procedures prescribed by law,Footnote 26 closing down oppositional TV channels and other media referring to alleged violations of law by them or by their owners,Footnote 27 excluding candidates from elections because of non-compliance with the routines of the electoral process,Footnote 28 prosecuting business entities which are sympathetic with oppositional parties on the grounds of tax law,Footnote 29 etc. All these actions are done with reference to the letter of law. Such references create an illusion of legality of these actions in the eyes of the people and uphold the illusion of political legitimacy of the power-holders. I term this ‘political legalism’.
The above-mentioned case, A v B, illustrates how politicians resort to legalistic excuses for the purposes of undermining the rival political movements. In A v B, political legalism is reflected in B’s actions and reasoning. B, the political agent of the incumbent power-holders, finds a number of legalistic pretexts for reducing the effect of the expected demonstration of political party A. First, B rejects A’s application to hold a demonstration in Our Hyde Park, justifying its rejection by invalidity of the application submitted by A due to technical omissions in the application form submitted by A prior to the demonstration. Next, on the following day when another, corrected application is submitted, B refuses to allow the demonstration in Our Hyde Park because the Park is reserved for a musical show scheduled to take place on the requested day and at the requested time – worth to note that the musical show has been initiated and approved by B itself right on the same day. Finally, A is refused access to the Park on the last day of the pre-electoral campaign because the square is now reserved for the political rally of the pro-governmental party. The ‘alternative place’ in which B allows A’s demonstration, as mentioned, is not good for gatherings.
One way of accomplishing the same political mission – making obstacles to effective political campaigning by a rival political group – would be to ban the opponent’s demonstration in an obvious violation of constitutional and statutory requirements. However, the legalistic technologies, which the incumbent politicians employ, create an additional value to the enterprise of power holding: an external illusion of legitimacy of their action. This legalistic reasoning gets the compassionate support of the judiciary which is generally well familiar with and used to the same style of formalist legal reasoning. The legal formalism of this type is primarily exploited by the political elites in power for their partisan purposes, while their reference to these methods presents a signal to courts about the preferred way of interpretation of the concerned law in case of a potential complaint. This habit represents a typical pattern of Soviet-time practices of political instruction on the outcome of judicial cases, commonly called ‘telephone justice.’
The formal constitutional structure of democracy is preserved and the relevant rituals are observed in order to legitimize the status quo. This reality deserves a special attention for the purposes of this work, because the interrelationship between formal democratic institutions and informal practices, which are contrary to the spirit of democracy, will be in the core of our discussion subsequently. The reality can well be considered to be a common pattern in virtually all countries in the region. Including even Turkmenistan during the tenure of its President-for-life Niyazov, all these states chose to preserve their democratic constitutions and their procedures rather than to eliminate them, while the political practices in all of them openly deviated from democratic standards in one or another way. Sufficient knowledge of this apparently paradoxical political phenomenon is necessary for explaining the seemingly contradictory political practices discussed in this work. Apprehension of the degree of respect and cynicism with respect to democratic institutions and the exact incentives for keeping within the formal democratic boundaries in each particular sub-region or country is a key to understanding of the political processes and design strategies there. More light can be spread on this by consideration of the typology which prior works developed by explaining the general attitudes towards and motivations for the formal adherence to the democratic standard.
In a famous article, political scientists Steven Levitsky and Lucan Way distinguish between the following types of regimes which can characterize the political establishments in the former Soviet area: delegative democracy, as depicted by Guillermo O’Donnel,Footnote 30 competitive authoritarian regimes, and façade electoral regimes.Footnote 31 The point behind recalling this study is not in the exercise of assigning types for its own sake but in looking at the substance of one or the other type for the purposes of our work. Thus, according to the authors of this research, in façade electoral regimes the democratic institutions exist (on paper only, most probably) but they do not result in any meaningful political competition, and hence these are classified as fully authoritarian regimes.Footnote 32 In contrast, in competitive authoritarian regimes, electoral institutions exist, and although elections are mostly flawed, the democratic institutions create a possibility for the opposition to challenge, often significantly, the incumbent political leadership. The line between these two types is often difficult to draw, according to Levitsky and Way. However, it is important, they notice, ‘to distinguish regimes in which democratic institutions offer an important channel through which the opposition may seek power from those regimes in which democratic rules simply serve as to legitimate an existing autocratic leadership.’Footnote 33
This line is very important to be drawn in this work. Wherever democratic institutions provide a chance for competition, we can observe patterns of behavior of higher courts which are different from the ones in ‘full authoritarian regimes.’ Revisiting the relatively recent record of higher courts involvement in politics in post-Soviet countries, we could assert that the performance of these courts considerably depends on the political situation and the predictability of the outcomes of electoral processes in particular time. Wherever the regime type allows arising of such uncertainty, we may predict some typical patterns of judicial behavior which are found to be often pro-democratic.Footnote 34 In contrast, in the regimes which never allow a meaningful competition, neither uncertainty nor pro-democratic performance by constitutional courts is likely to be expected. The rhetoric of political legalism in such concentrated regimes gets a full support of loyal judges. In freer political regimes judges often subscribe to this ideological perversion because they are coerced or because of rational considerations.
One way or the other, it is the formalistic constitutional culture that involves judges in the discourses of political legalism. The legal tradition inherited from the Soviet system, in this sense, performs an immoral role of the involuntary agent of political abuse. The prospect for democratization is aggravated by the perception of legitimacy of the legalistic language by the public, which is often convinced by the apparent constitutionality and legitimacy of the actions by the impudent incumbents. Obviously enough, this obstacle to democracy is hard to fight until some stronger agents pursue activating of true democratic constitutions – objective democratic constitutions which exist regardless or beyond the written law. The courts, and constitutional courts in the first place, have a crucial role to perform here, I believe.
Defective design of constitutional courts
Finally, some limitations are due to defects in institutional design. I refer to the institutional design of constitutional courts by the virtue of which these tribunals are empowered to adjudicate political conflicts, such as electoral disputes and controversies between political bodies, and to review cases of impeachments and constitutionality of political parties (political empowerment). Such design, meant to strengthen the ‘political’ arsenal of constitutional courts by assigning responsibilities which look ‘marginal’Footnote 35 on the background of the central function of these tribunals, that is abstract review of laws, has resulted in a model of partial and specific jurisdictions. This model is associated with both formal and practical limitations on the exercise of effective constitutional review. The model, limiting rather than strengthening the courts, has resulted in political disempowerment rather than empowerment. In addition, some limitations are due to the failure to provide for working linkages between alienated segments of the judiciary, which is a result of a defective separation between constitutional and other courts.
On the formal level, the explicitness of the list of acts and specific matters subject to the constitutional courts’ jurisdiction is definitely a limitation if compared with the unlimited jurisdiction granted by the diffuse (American) system or compared with those ‘Kelsenian models’Footnote 36 which provide for lively synergy between the separated segments of the judiciary. In particular, post-Soviet constitutional courts’ supervisory functions are limited only to certain types of cases, and these courts cannot review cases which are not assigned to the jurisdiction of constitutional courts, even if these cases contain essentially constitutional issues. For example, the Constitutional Court of Russia or Ukraine cannot adjudicate cases on presidential elections even if the elections fall short of basic constitutional standards and even if there is a party legitimately interested in constitutional review. Similarly, the Constitutional Court of Armenia cannot resolve jurisdictional disputes, because jurisdictional disputes are not assigned to this Court by the Constitution.
Second, the separation of the constitutional tribunal in the manner it was done in post-Soviet countries has developed a ‘complex of jurisdictions’ in post-Soviet courts. Here, general courts abstain from adjudicating clear constitutional problems, while constitutional courts often appear to be barred from review of matters which technically fall under the jurisdictions of general courts.Footnote 37 The situation is aggravated by the effect of the emerged legal culture which quite formalistically separates the provinces of constitution and other laws. Let us take the case with presidential elections in those countries which do not assign the electoral disputes to the mandate of constitutional courts. Here, the resolution of these disputes is falling within the competency of general and not constitutional courts, as noticed. Given the formalism in separating the domain of constitution on one hand and other laws on the other and the widespread culture of procedural legalism discussed earlier, the general court will adjudicate the presidential elections case under the statutory law. Treating the case ‘under law’, may look normal if the petition concerns an issue of fact, for example a controversy about the results of vote counting. But what if it is an issue of law – constitutional law – for example concerning a practice violating a standard of equality?
The model, therefore, stipulates also limitations in terms of judicial discretion to adjudicate both matters of law and matters of facts. Disputes on presidential elections, for example, can contain either one, or the other, or both. The Constitution of Armenia, for example, enables the Constitutional Court as a judge of fact in electoral cases and hence the Court is empowered to decide on the results of elections whether or not the dispute in case concerns a matter of law (constitution) per se. As opposed, in Russia and Ukraine, where it is not up to the constitutional courts to adjudicate electoral disputes, these courts may practically review only matters of law that is whether or not the law, which was applied by another court dealing with an appeal by a presidential candidate, is in compliance with the constitution. In this latter case, the limitation is self-evident given the fact that the institutional design has not taken care of synergy between the two judicial functions that would allow the case, involving both issues of fact and issues of law, to harmoniously transit from one jurisdiction to the other. The statement that the system in place is often incapable of offering working continuity between the two segments of judiciary is well illustrated by the cases discussed at the end of this article.
The next limitation, associated with the existing model, relates to the exercise of constitutional review in a predominantly abstract fashion and in sound detachment from the inherently judicial conflict–resolving milieu. The models which do not assign electoral disputes to constitutional courts are a good example also for this argument. As we discussed, in all the cases of electoral disputes where the issue in case is substantively a matter of constitutional law, the cases nevertheless have to be reviewed by general courts, while the constitutional courts can only have a mere theoretical chance of an abstract review if a party then appeals the decision of the particular general court. Even in this case, the constitutional courts are not in a position to essentially address the constitutional violation, but they can only issue a judgment about the constitutionality of the law which was applied by the general court. For one, it is not only the law in case that can be unconstitutional, but so can be the decision of a general court interpreting a law which by itself is constitutional.
With all this in mind, let us hypothesize further on our case of A v B. After being rejected by the GC, applicant A files an application to the Constitutional Court (CC) alleging violation of its constitutional rights. The model under our review often allows the CC to review only the subject law – the law on demonstrations and manifestations – on the issue of its compliance with the Constitution. But the law in this particular case looks absolutely constitutional; it is B’s and GC’s interpretation of the law that is unconstitutional. However, CC does not have a direct mandate to review their actions against the standards of the constitution. CC is experiencing a mere regulatory limitation on its competency to address the case. The absolutely legitimate complaint of A fails to reach constitutional review.
Legalism, politics and institutional limitations in the courtroom
The two cases, to be discussed, most starkly demonstrate the discussed obstacles facing higher courts of post-Soviet countries.
Kasyanov v the Central Electoral Commission of the Russian Federation Footnote 38 was a review of an appeal on the decision of the Central Electoral Commission (CEC) to decline registration of the key oppositional contender and the former Prime Minister Mikhail Kasyanov as a candidate in presidential elections in Russia in 2008. CEC had refused to register Kasyanov as candidate purporting irregularities in the procedure of collection of signatures, which are required by the Russian legislation for a candidate to be nominated as a candidate. The Law of Russia on the Elections of the President in the best Soviet traditions provides for routinely detailed procedures for nomination and registration of the candidates, including highly technical description of each of the required procedures to be completed and ‘spravkas’Footnote 39 to be supplied. The decision of the CEC was reviewed twice by the Supreme Court of Russia as the Russian Constitution does not provide for the review of electoral disputes by the Constitutional Court. Both times, the Supreme Court (once in its plenary seating and then as the Supreme Cassation instance) declined Kasyanov’s appeal and confirmed CEC’s refusal to register Kasyanov as candidate. Mikhail Kasyanov was the only pro-democratic contender for presidency and was the staunchest opponent of President Putin. CEC’s rejection of his registration was widely believed to be the Kremlin’s way for ‘legally’ barring him from the campaign. Whether or not the grounds for this ‘legal’ action were present and justified, the case finely illustrates a number of patterns which we observed in this paper.
To begin, the charge in fabrication of signatures in support of a candidate excellently illustrates the legalism and proceduralism of the political process and the judicial culture tolerating it. Not only the requirement of such a ceremonial procedure as signature collection is highly formalist, but the arguments of the CEC for disqualifying the potential presidential candidate due to some technical irregularities with the signatures on that candidate’s behalf sound unjustifiably formalist too. For example, one of the grounds for invalidating the signatures collected for Kasyanov was that the signatories failed to provide their full address on the signature form. For example, Ivan Ivanov’s signature in support of Kasyanov might have been invalidated because he did not indicate on the signature form that he resided in Perm Region, though he indicated that he resided in the city of Perm. It is worth mentioning that both the CEC and the Supreme Court admitted that the required number of signatures had been collected in support of the candidate and that the signatories personally put their signatures. Merely technical deviations in the process of signature collection mattered. In the words of Mikhail Kasyanov, the Supreme Court had acknowledged that the CEC was right in what related to the very routine procedure of filling in the signature forms, while the signatures which were nevertheless collected in his support and the political will expressed in this way did not concern the Court.Footnote 40
Besides revealing the symptoms of procedural legalism which serve as a ‘legitimate’ tool for the abuse of genuine democratic pluralism and as an instrument of concentration and reproduction of power, the case also starkly exposes the judiciary’s susceptibility in similar politically sensitive cases involving violations of basic constitutional principles. Consider the fact that the Supreme Court of Russia, when reviewing Kasyanov’s appeal that the alleged irregularities with the signatures can not become a valid reason for declining his constitutional right to run in presidential elections, did not treat the case in the constitutional context at all but rather simply checked on the validity of the facts and on the compliance of the CEC’s decision with the routine of the procedure provided by the law.Footnote 41 I am convinced that in this case we witness also a typical paradigm of a general court acting (or preferring to act) in its legitimate capacity of a court of laws, as opposed to court of constitution. It is then especially odd that this is not a regular general court but the Supreme Court of Russia, which ultimately has the mandate of review of electoral disputes that reduced the intrinsically constitutional case of a great political significance to the level of compliance with the requirements of routine technicalities provided by laws and bylaws.
The positivist legalism of the system at large and the political expediency can only be partially blamed for this. The situation is aggravated by the separation of the jurisdictions of constitutional courts from that of other courts and by the failure to provide effective working synergy between the two, as well as by the formalism in separation of the provinces of constitutional and other law. Notably, the Supreme Court was seen as the last instance that could effectively restore Kasyanov’s right to run in the elections. The prospect of applying to the Constitutional Court with a request for review of the presidential elections law, which was taken as the basis in the Supreme Court’s decision, was questioned by both the complainant and the expert community. It is obvious that the constitutional review of the subject law would not be able to provide effective remedy in this case.
In re Ter-Petrosyan,Footnote 42 the Constitutional Court of Armenia reviewed on February 11, 2008 the request of the presidential candidate Levon Ter-Petrosyan to consider the campaign run by the public television and other state-controlled media against him as an insurmountable obstacle before the candidate for presidency. In particular, the candidate argued that the National Tele-Radio Company and especially the ‘Hailur’ news program had violated the legislation by regularly and consistently broadcasting materials against him during the three preceding months. The application, which was submitted several days before the election day, alleged the mentioned state-run campaign to be an unconstitutional interference by the state in the presidential race. This, according to candidate Levon Ter-Petrosyan, created an insurmountable obstacle for him and should serve as a ground for postponing the elections.
In its decision on the case, the Constitutional Court found that the provision of the Constitution to which the complainant refers (Art. 52) is implying two cases of insurmountable obstacles for a presidential candidate: first, in case of impossibility of further personal participation in the presidential elections owing to a situation which causes incapability of a candidate to do so (an institution originated in the French constitutional practice, according to the Court), and second, in case of the death of one of the candidates. Neither of these situations matches the case of the complainant, found the Court. However, alongside with the decision to decline the complaint, the Constitutional Court, in a non-binding dicta (as it has become the tradition of especially the Constitutional Court of Armenia), elaborated further that according to the Electoral Law the state ensures equality during pre-election campaign, that candidates should enjoy equal access to mass media, and that the National Television Company and the National Radio should provide for equal conditions for the candidates. Furthermore, the Court observed that ‘the news programs broadcasted by the National Television and National Radio should provide impartial information on the campaign of the candidates and should refrain from assessing the information in order to ensure observance of the fair and equal conditions’Footnote 43 and by referring to the responsibilities of the public institutions for complying with these provisions. The Court also pointed to the procedure for appealing the respective violations in the administrative court. The Constitutional Court concluded by saying that the complainant’s positions are lawful and that the above-mentioned organizations and the administrative court have a responsibility to prevent the violations of the laws. By doing so, the Constitutional Court in fact recognized the overall validity of the applicant’s argument in the case and the facts of violation of fundamental standards of equality by state bodies. Nevertheless, the Court abstained from properly adjudicating these duly recognized violations due to the jurisdictional limitations provided by the Constitution.
In both of the above-discussed cases we could observe the practical limitations of the model of constitutional review with strictly separated jurisdictions of constitutional and other courts and with ensuing strict formalism in separating the provinces of constitutional and other law. The case of Kasyanov is an excellent illustration of the general courts’ refusal to review constitutional issues under the constitutional principles proper at the same time as the institutional design was incapable to guarantee remedy through constitutional review. In the case of Ter-Petrosyan, the Constitutional Court in Armenia found itself incompetent to decide on a complaint about essentially constitutional violations due to the jurisdictional limitations imposed by the Constitution, even though these violations were recognized by the same court as falling short of the constitutional standards. After all, we observe well-illustrated evidence of defects in the design of intended political empowerment resulting in disempowerment of both factions of the judiciary in light of their divided and limited responsibility over the constitutionality of elections.
Conclusions
Constitutionalism is a troubled undertaking in post-Soviet counties. The relevant problems are deeply rooted in the political and legal culture. This paper found the weaknesses in implementation of constitutional law being essentially caused by the heritage of a legal tradition distinguished by embedded formalism and ‘vulgar Marxian positivism.’Footnote 44 Moreover, this stark heritage of the Soviet legal nihilism has been considerably affected also by the corrupt practices of ‘political legalism’ – a product of post-Communist-era political manipulations by quasi-autocratic ruling elites who employed and further activated the formalistic legal culture for reproduction of their political power.
This disease, clearly enough, requires an all-inclusive cure, and a comprehensive intervention is needed for overcoming it. This may require a ‘cultural revolution’ for reforming the overall logic of constitutional structure from one based on rules and procedures to one based on concepts and principles.Footnote 45 This approach should help shifting the constitutional discourse from the deeply embedded Soviet-time vision of it as ‘state law’ – the law of organization of the government, hence, eventually, the law of government empowerment, to the genuine discourse of constitutional law as law limiting government. This line should be successfully taken over by (constitutional) judges who can be instrumental in activating the fundamental meaning of constitutional democracy by activist insistence on the spirit of constitutional law rather than the letter of written law which is everywhere fine-tuned to support the power-holders.
We saw, however, that judges sometimes find themselves powerless to bring a change because often they are restricted by constitutions which impose certain limitations on the implementation of full-scale, effective judicial review. Indeed, while the most deeply rooted and complex problems facing post-Soviet constitutionalism owe to the cultural settings and require a comprehensive political reform, many of the troubles of constitutional justice which we mentioned above are due to more commonplace defects and can be indeed cured by a designer intervention. The drawbacks of the Kelsenian model belong to this category.Footnote 46 Constitutional design should be paid a renewed attention if the struggling democracies of the former Soviet Union choose to respond to contemporary challenges facing their democratization. Constitutional courts, as the principal instrument of constitutionalism, should be activated and given a fresh start, insight, power and momentum, as the era of their decisive role in democratic development is actually only to start.
Constitutionalization of politics is both an opportunity and a challenge for any developing democracies. Both need to be taken but both need to be taken reasonably. While failures on this path are unavoidable, comparative science offers knowledge which can make these failures softer. This knowledge is invaluable for any newcomer or evolving democratic state, and the lessons nowadays look especially relevant to those who have booked their flights to the Arab world to practice constitutional engineering. Constitutional designing should be instrumental in shaping the newcomers to respond to inevitable challenges along their path towards democratic consolidation. To confront concentration and abuse of government power as the likeliest of such challenges, it is vital, as a renowned constitutional scholar puts this, to ‘discuss and learn those manners, institutions, and principles that efficiently limit all governments, democratically elected or controlled or not.’Footnote 47 Constitutional courts, as the principal embodiment of the institutional formula of limiting government, have to be brought to the fore. However, the hard question that begs special treatment is not in the fact of their empowerment but in the mode in which it will be done. Having learnt the lessons from the Soviets, designers should avoid transplanting the configuration of any ideal types and should definitely avoid over-empowering the courts in the way as it was done with Russia’s Constitutional Court in 1991; instead, they should be highly sensitive to the local conditions, historically taken institutional paths and the embedded patterns of political socialization. These factors oblige deviations from pure forms and call for distinct constitutional architecture matching the specific local demands, as the biggest of challenges before an institutional designer is to strike the right balance between the local conditions resisting consolidation of democratic institutions and the key mechanisms sustaining such moral ideals behind them that should help the institutions gain sufficient public support and appreciation.
Acknowledgments
I wish to thank Wojciech Sadurski and Patricia Popelier for their comments on early drafts of this article. I am indebted to the Centre for Law and Cosmopolitan Values at the University of Antwerp, and especially to Georgios Pavlakos and Patricia Popelier, for creating a stimulating research environment for writing this paper and for general academic support.
