Putin's Artful Jurisprudence

Putin's Artful Jurisprudence

Mini Teaser: Russia's legal reforms centralized power and allowed the creation of informal rules that ensure elite loyalty.

by Author(s): William Partlett

AT 8:00 P.M., Moscow time, on September 21, 1993, Russian president Boris Yeltsin read out an emergency decree on national television. Blaming Russian parliamentary leaders for ignoring the will of the Russian people, Yeltsin abolished the existing constitution and disbanded every legislative assembly in Russia. Russian parliamentary leaders immediately called an emergency session and removed Yeltsin for treason. They named his vice president, Alexander Rutskoi, acting president. The Russian Constitutional Court chairman, Valery Zorkin, then appeared before Parliament and reported that a majority of the court had found Yeltsin’s decree unconstitutional. Russia now had two presidents.

These two presidents eyed each other warily across a tense Moscow for more than a week. They issued competing laws and decrees to strengthen their respective positions. With the backing of the West and the Russian armed forces, Yeltsin quarantined the Russian Parliament in its building. The Parliament surrounded itself with armed supporters and called for a general strike. Fears of civil war spread as both sides sought to gain support and project political legitimacy. Amid this “war of laws,” legality broke down. Chairman Zorkin frantically sought to forge a compromise that would restore the political struggle to a legal plane.

Zorkin’s effort failed. After a series of armed street clashes, Yeltsin ordered the army to storm the Russian Parliament. A shocked Russian populace looked on as tanks took up positions across from Parliament. As tank shells slammed into the building, Rutskoi called Zorkin and asked him to alert the embassies. He went on: “They won’t let us out of here alive. Is the world community actually going to let them shoot the witnesses? There’ll have to be an investigation later, you know. They’re murderers! Do you understand me? You’re a believer, it will be on your head.”

It was too late. Moments later, Russian special forces entered Parliament and arrested Rutskoi and his parliamentary supporters. The following day, Yeltsin indefinitely suspended the entire Constitutional Court for “political activities” and relieved Zorkin of his chairmanship.

Meanwhile, law remained an instrument of high-level political and economic warfare. Legality suffered as powerful elites deployed formal law to weaken their enemies and protect their wealth. The widespread use of law as an instrument of power politics threatened to pull Russia apart. In early 1994, Zorkin helped found a movement called “Accord in the Name of Russia.” The movement’s manifesto called for the restoration of a top-down hierarchy in law and order to preserve Russia’s territorial integrity and restore Russian greatness. Although the movement was ultimately unsuccessful, this embittered elite remained.

VLADIMIR PUTIN became Russian president in 2000. He promptly promised to fulfill the dreams of this disillusioned elite by restoring top-down legality to Russia. Most have dismissed this pledge as Soviet-style subterfuge, a veneer of legality to paper over Putin’s personalized system of authoritarian rule. And it is certainly true that Putin has come to dominate Russian politics by successfully managing the personalized, mafia-style world of politics inherited from the 1990s. Numerous commentators have documented Putin’s role as the “godfather” of Russia’s extralegal, personalized world of power. Furthermore, many reports suggest that official corruption has increased during his thirteen years of national dominance. Recently leaked WikiLeaks cables have provided juicy details about the shadowy underworld in which Russian power operates. One cable describes a network of bribes and kickbacks that stretches all the way from the streets to the highest levels of Russian government.

At the same time, however, Putin has delivered on his promises to reform Russia’s formal legal system. In his first term, Putin pushed through ten new legal codes. These reforms helped create a legal foundation for free market economics in Russia, including the introduction of Russia’s first-ever land code, a new tax code that introduced a 13 percent flat tax and a new labor code, which sought to regulate employer-employee relations and make it easier to lay off employees.

Putin initiated a number of other legal reforms and alterations. He sought to update Soviet-era codes affecting individual rights. In 2002, he scuttled a Soviet-era criminal code that allowed near-unlimited pretrial detention and searches without judicial intervention. In its place, he pushed through a new criminal code that greatly expanded access to jury trials while limiting prosecutorial power and the amount of time for pretrial detention. But he also pushed through legislation limiting individual rights when these rights were seen as threatening the state.

In addition, Putin substantially increased federal funding to Russian legal institutions, raising judicial pay while expanding the number of justices of the peace who handle local disputes. He pushed through legislation furthering the professionalization of the legal system by requiring the use of licensed lawyers (advokaty) in criminal trials. He has ratified international agreements, including the UN Convention against Corruption, and made Russia part of the Financial Action Task Force. Finally, Putin has faithfully implemented a number of decisions rendered by the European Court of Human Rights.

This formal legal reform raises some intriguing and sometimes troubling questions. How does Putin’s personal style of rule fit in with these formal legal reforms? And why haven’t these legal reforms reduced corruption?

The answer is that Putin never intended his legal and judicial reforms to stamp out corruption or replace informal, personalized rule. His plan was to use reformed formal legal institutions to complement his personalized rule. In fact, strong legal institutions were a means to an end—a tool for ensuring that he could punish those who did not comply with his informal rules of the game through selective prosecution.

PUTIN’S “LAWFARE STATE” is hardly a new innovation. As the saying attributed to multiple Latin American strongmen goes, “For my friends, anything—for my enemies, the law.” This lawfare system is seductively simple: in return for elite adherence to informal rules and personal loyalty, the state tolerates corrupt activities. Meanwhile, the regime closely documents this corruption, building dossiers on key members of the system. If these players violate the informal rules of the game, compromising information is passed to the formal legal system, which then goes after them. Yale’s Keith Darden describes this system as a set of informal contracts in which “receipts from bribery and embezzlement would be granted in exchange for effective implementation of central directives and a share of the proceeds.” These formal legal sanctions are a powerful incentive for ensuring elite cohesion and personal loyalty: a disobedient individual faces the prospect of jail time as well as full-scale seizure of all of his or her wealth.

Putin first turned this lawfare strategy against the regional political elites. During the 1990s, members of these regional power elites worked with organized crime to build powerful political machines that turned government into for-profit enterprises. To ensure their continued loyalty, President Yeltsin signed bilateral treaties with these regional leaders allowing them to pass their own laws, appoint their own judges and groom their own prosecutors.

During the spring and summer of 2000, Putin made clear that the age of regional autonomy was over. Thus did the new rules of the game emerge: the governors would send tax revenue to the center and implement central directives or face the formal legal system. These new rules triggered a “cold war” between many entrenched regional power elites and the Kremlin.

To gain advantage in this cold war, Putin worked methodically to undermine the legal protections enjoyed by regional elites. First, under the slogan of building a unified political space in Russia, he empowered federal courts to strike down regional laws that were inconsistent with federal law. Thousands of laws were removed. Second, Putin pushed through legislation that increased his formal legal leverage over the governors. This legislative package included laws that increased presidential control over the upper house of Parliament, a body that had become an institution for protecting local interests; allowed him to remove governors who did not comply with federal law; and created seven federal districts with presidential envoys who projected federal power into the Russian regions.

With this formal legal infrastructure in place, Putin targeted his first political prey: Yevgeny Nazdratenko, the governor of Primorsky Krai in the Russian Far East. During the 1990s, Nazdratenko had built one of the most powerful and corrupt regional party machines in Russia. His unsavory schemes exploited Russia’s vast fishing resources in the northern Pacific and included a massive kickback system for unregulated crab fishing in Russian waters. Despite attempts by high-level Russian officials to remove him from power, Nazdratenko remained highly entrenched.

In late 2000, however, Putin signaled that he wanted Nazdratenko out. As rumors circulated about imminent corruption charges, Putin visited the governor. Shortly thereafter, Nazdratenko resigned and was promptly appointed head of the State Fisheries Commission. In this position, Nazdratenko became the fox guarding the henhouse: during his tenure as head of the commission, according to reports, Japanese fishermen paid commission officials some $10 million in bribes for the right to fish in Russian waters. But Putin’s new system worked as he intended. Nazdratenko had complied to avoid prosecution. The lawfare state had its first “victory,” and a fundamental reality of Putin’s governing approach became apparent: he was not a foe of corruption per se but rather of corruption he couldn’t control.

Pullquote: Strong legal institutions were a means to an end—a tool for ensuring that Putin could punish those who did not comply with his informal rules of the game through selective prosecution.Essay Types: Essay