NY Dispatches: Regional constitutional courts

This week the State Duma voted to approve the liquidation of regional constitutional courts. According to the law, which implements this year’s constitutional reform, regional constitutional courts will be abolished by 2023. They may be replaced by “constitutional councils” functioning along regional assemblies, but presently it is unclear what powers, if any, these will have. But why do these courts matter, and why does the Kremlin want to get rid of them? An explainer.

Russia’s regions could so far establish constitutional courts to interpret regional constitutions and basic laws (устав), and in some cases – depending on the powers vested into these bodies by the regional polities that created them – solve disputes between regional governing bodies, inspect bills or referendum proposals for constitutionality.

18 regions established such courts, but some of these were later abolished: e.g. the Chelyabinsk Region abolished its court in 2014 after it disagreed with the regional government on a transportation tax regulation – so today 15 remain: in 12 republics, Moscow, St. Petersburg & Kaliningrad, although both Tatarstan and St. Petersburg are contemplating getting rid of their courts. The last regional constitutional court to be abolished was the Republic of Tuva’s, in 2019. The decision was proposed by Sholban Kara-Ool, the head of the republic who thought that the court’s yearly running cost of around 30 million rubles was a was a waste of money.

This argument – that regional constitutional courts are too expensive and do practically nothing – has come up frequently in recent weeks among supporters of the bill. But is it true?

Well, it is true that regional constitutional courts do not take a lot of decisions. Tuva’s for example discussed a total of 53 cases in the 16 years of its existence. Chechnya’s barely worked at all (not much of a surprise in a region that its leader regards as his personal fiefdom). To compare, the Federal Constitutional Court issued 41 rulings (постановление) and more than 3,600 positions (определение) just in 2019. But then again, 30 million rubles constituted less than 0.1 percent of Tuva’s budget, and Tuva is a relatively poor region; richer regions spend even less in relative terms on their courts. So are the courts really that expensive? Debatable – but surely in times of scarcity such as the one we are going through now, such arguments will ring truer.

Some proponents of the law said that these courts could be abolished because they had done their job ironing out wrinkles in regional constitutions and things are now clear. This makes little sense especially if you look at the case that likely triggered this year’s law.

Ingushetia saw unprecedented and unexpected protests in 2018 following a border deal with Chechnya that appeared to have been forced by Chechen president Ramzan Kadyrov and signed practically in secret. The republic’s own constitutional court duly called the decision unconstitutional after several members of the regional legislature spoke up against it. This energized the protests, shocked the Kremlin and eventually the Federal Constitutional Court overruled the regional court. Even so, the protests lasted well into 2019. In that year the Kremlin appointed a new governor, Makhmud-Ali Kalimatov, a half-outsider – an Ingush who was born and raised in Kazakhstan but had been working in Ingushetia’s state apparatus for a while – who in September 2020 duly proposed abolishing the region’s constitutional court.

But the regional assembly refused to consider the bill.

What’s more, Ingush legal experts, including Ayup Gagiev, the head of the republic’s constitutional court expressed the opinion that it did not follow from the 2020 constitutional reform that regional constitutional courts should be abolished, questioning an intent that the Kremlin had likely expected officials down the line to understand. A couple of weeks later the Duma answered: yes, it does.

The decision is likely not only about Ingushetia – though as I explained last week, the region is a political hot spot – but the Ingush case is a good example of likely why the Kremlin took this decision.

The third argument for the abolishment of regional constitutional courts – mentioned here in an article on Regnum, a hardline news site with suspected connections to the security apparatus – is that they depend on regional executives. The suspicion that this is so or that it may be so in the future is likely the real reason behind the bill.

Regional constitutional judges are appointed by regional institutions and thus if they face political pressure they are most likely going to be pressured by regional elites. And as I noted before, in recent years we have seen an increasing number of cases, in which regional elites were tempted to side with protesters in their region or otherwise to take their own initiatives. Normally the federal center would rely on a range of tools to resolve regional and local conflicts, herd regional elites and clip unwanted initiatives, from fiscal centralisation and “varangian” (outsider) governors to criminal investigations and the United Russia party. When these tools are increasingly likely to fall short or lead to further conflict, however – either because of external challenges (e.g. smart voting) or elite opportunism – the Kremlin will want to reduce potential risks. Especially when it comes to the republics.

With initiatives like this one, or by enshrining single power vertical from the president to municipalities in the constitution, the Kremlin hedges against future risks that may arise in the regions in crisis situations. An upcoming law on federal territories, which will allow Moscow to directly administer resource-rich territories if it wants to, serves a similar purpose and regional elites are almost certainly anxious about it.

All this however also means that traditional, subtler ways of multi-level governance in Russia are malfunctioning and politics is expected become more conflictual, either because of (planned or unplanned) party system changes or because of more frequently clashing interests.

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