Paul Goble

Vienna, October 26 – Russia’s opposition might be close to achieving one of the requirements for achieving fundamental political change – winning enough votes to plausibly claim their victory in an election had been stolen – but unless the courts have the independence needed to rule that is the case, one analyst says, the opposition “won’t achieve anything.”
In an essay on the Kasparov.ru portal, Valery Promyslovsky argues that the powers that be thus have even more reason than ever before to maintain political control over the court system rather than allowing the judiciary to develop “genuine and not just formal independence” as the Russian Constitution requires (www.kasparov.ru/material.php?id=4ADEC9A352C32).
That in turn has two consequences which are sometimes overlooked. On the one hand, the powers that be are going to rely ever more frequently on the judiciary to keep themselves in power, confident that with the courts in their pocket they can pass legislation pleasing to the population and the West without ever having to face its implementation.
And on the other – and this is the most important implication of Promyslovsky’s article – it means that the struggle over the courts, including transparency, the role of precedent, professionalism of judges as well as other issues may determine more about the future of Russia’s fragile democracy than the manner in which elections are contested and organized.
Unfortunately, the Moscow analyst continues, this is not something that many in the opposition either understand or are acting upon. “Instead of an objective systemic analysis, the opposition is involved with extreme populism” and acts as if at some point the powers that be will simply be convinced to hand over power to their opponents.
Were the opposition more thoughtful, Promyslovsky suggests, its members would recognize that all its demands – “from free and democratic elections to the rights of sexual minorities” – require “an independent court,” which will ensure that any laws or constitutional provisions that do exist will be enforced.
Until that happens, Russia’s powers that be can dream up “a clutch of remarkable laws “– and Promyslovsky notes that Moscow has both domestic and foreign policy reasons to do just that – “but if the court will continue to remain under the control of the executive power, then the way in which the laws are in fact applied will remain exactly what it is now.”
Promyslovsky argues that “the opposition has a chance, by using the Constitution and not going beyond the framework of the law,” to outplay its opponents among the current powers that be. But for that, he continues, the opposition must “shift away from what in current circumstances is the senseless question about the trustworthiness of the results of the elections.”
Instead, he says, the opposition must focus on the broader and more significant question of the legitimacy of the Russian powers that be as such. And that in turn will require them to focus not just on what the laws say and on how the provisions of the laws are being enforced but on the way in which the regime is delegitimizing itself by its control of the courts.
Indeed, Promyslovsky suggests, the current powers that be “cannot fail to understand that by covering themselves with the fig leaf of ‘the expression of the popular will,’ they may finally convert themselves in the eyes of the citizenry into people who have simply advanced themselves. And the fate of such people is [typically] sad.”
But whether he intended it or not, President Dmitry Medvedev’s suggestion on Saturday that those upset by the outcome of the recent elections and by how that outcome was achieved should not be directing their anger toward him but toward the courts points in the same direction -- even if the Kremlin leader would not be pleased if things proceeded as Promyslovsky wants.