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Alexander N. Domrin

Issues and Options in the Soviet Transition to the Rule of Law

Coexistence. A Review of East-West and Development Issues. Dordrecht, Boston, London: Martinus Nijhoff Publishers. Vol.30, No.1, March 1993. Pp.57-68.

There are not many words and expressions in the modern political Russian language that are being used as often as 'perestroika' and 'glasnost'. One of them is 'pravovoe gosudarstvo', which can be translated into English as 'a state of law' or 'law-governed state'. After a long period of abandoning the rule of law concept as a 'bourgeois theory' contradicting the Marxist prediction of the gradual withering away of law, the term was first used in official Party documents in July 1988, when the extraordinary Nineteenth All-Union Conference of the Communist Party of the Soviet Union (CPSU) adopted resolutions 'On Legal Reform' and 'On Democratization of Soviet Society and Reform of the Political System'. The resolutions proclaimed a broad spectrum of transformations, including an increase in the role of elected legislatures and relaxation of Party control. They rehabilitated the rule of law concept and called for the 'formation of a socialist law-governed state', a formulation that, together with the 'regulated market economy', formed the basis of contemporary official Soviet politics.

Later, in the autumn of 1988, delivering a speech to the Forty-third session of the United Nations General Assembly. Mikhail Gorbachev described the 'ideal political order' as a 'global community composed of states based on the rule of law' 1*.

Yet it took several years to get rid of the adjectives 'socialist' and 'regulated' qualifying respectively legal and economic systems of the USSR and to stop trying to combine socialism (as it was understood in the Soviet Union) and democracy.

One of the main contradictions of the Soviet transition to the rule of law is that even now, in the seventh year of perestroika and three years after the term 'pravovoe gosudarstvo' (along with the expression 'human rights') found its legitimate place in the lexicon of Soviet reformers, neither Russian politicians nor legal scholars have reached consensus on what 'the rule of law' doctrine really means. As a rule, both researchers and practitioners, both former Communists and Democrats, stress one or another side of the concept. It varies from Mikhail Gorbachev's position expressed at the Nineteenth Party Conference and reflected in its resolutions according to which

to Andrei Sakharov's definition (in his speech to the First Congress of the USSR Peoples' Deputies held in May-June 1989) of the main three principles of a law-governed state as Voluntary or involuntary lack of consensus on the meaning of the rule of law, broad interpretation of the term, and attempts to use it in political demagogy as a populist tool lead to outright abuses of the concept.

To be objective, one should note that doublespeak about the rule of law is not unique to the Soviet system. History knows many examples of falsifications of the term. One of the latest constitutions that claimed to be based on the rule of law principle was the Constitution of Chile adopted under Pinochet in 1981.

But all in all, what is the essence of the rule of law concept and what did it mean in Soviet terms?

The idea of the law-govemed state 4* was born in the seventeenth and eighteenth centuries (Locke, Montesquieu, Rousseau, Kant) in the period of industrial revolutions and on the wave of the fight against absolutism, feudal bureaucracy, and unbounded despotism. The concept reflected the necessity to defend the individual from dictatorship. Civil rights were declared inviolable.

There appears to be a parallel between that period and the period of legal reforms initiated by Mikhail Gorbachev in the Soviet Union. Shortcomings of laws and a general neglect of legal doctrine had become a sad tradition of the Soviet legal system by the mid 1980s. The country was primarily governed not by laws but by Party rulings and ministerial and departmental regulations, a considerable part of which was kept secret. The primacy of state interests over human rights seemed unshakable. Societal rights and freedoms were understood exclusively as having a collective but not an individual nature. Subjection of individual rights to the demands of the collective was in fact subjection to the state, the govemment, and the Party that controlled collectives. Attempts to defend human rights were considered undermining the system. Even attempts to distribute the text of the Universal Declaration of Human Rights of 1948 could be defined as a subversive activity and lead to several years' imprisonment as anti-Soviet propaganda. For public use, the Declaration was first published in the Soviet Union only in 1988. This is the polilicul conlext in which the legal reform process in the Soviet Union was launched under the banner of perestroika.

The most laconic explanation of what democracy means belongs to a well-known critic of Marxism, Karl Popper. According to him, democracy is a 'rule of law that enables us to get rid of the government without violence' 5*. Experience of the world's democracies gives obvious evidence thal major features of law-governed states which distinguish them from totalitarian or authoritarian regimes include the principles and mechanisms of the separution of powers (checks and balances, limited executive power, independence of thc judicial brunch), the protection of civil rights and freedoms, proper administration of justice, supremacy of the Fundamental law (Constitution) and upholding of the Constitution by the judiciary, and harmonious balance of interests of the Centre and the Units (in federal states). The Soviet policy of transition to the rule of law may be evaluated by its correspondence to these principles.

Not less important is the correspondence of Soviet legislation to standards of international law laid down in the United Nations covenants (primarily, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), the Helsinki accords, and the Vienna and Copenhagen concluding documents. One of the main goals of the legal reform and of perestroika in general was to bring Soviel legislation up to par with these international standards. The decision to hold the third Conference on Security and Cooperation in Europe (CSCE) Interim Meeting on the Human Dimension in Moscow in September 1991 was expected to further this goal.

The long and winding road of the Soviet transition to the rule of law is marked hy several milestones.

Constitutional reform in late 1988 amended or deleted about one third of the whole text of the USSR Constitution, primarily regulating the elecloral and legislative system. In March 1989, the first countrywide mullicandidate secret-ballot elections in the Soviel Union were held for the Congress of Peoples' Deputies of the USSR. The creation of a parliamentary system and a standing Supreme Soviet seriously weakened the Communist Party's monopoly on power and marked a breakthrough to a separation of powers in the legal system of the Soviet Union 6*.

Constitutional amendments in late 1988 strengthened legal guarantees ensuring the independence of judges in the USSR. The amendments were aimed at abandoning the tradition of selection of judges through the Party's 'nomenklatura' lists. According to the revised Article 150, judges of different levels were to be elected respectively by local republican and national legislative bodies. Their period in office was raised twice, from five to ten years. A judicial system can be really independent only when cases are resolved not by State employees but rather by the representatives of the people.

The constitutional protections were elaborated in the Law on the Status of Judges, enacted by the USSR Supreme Soviet at its 1989 autumn session. The law proclaimed judges to be 'independent and subordinate to the law only' and decreed legal penalties for attempts to interfere with their work or influence their decisions from outside, for instance, using the so-called 'telephone justice'.

Even the strongest critics of the Soviet regime accepted that the possibility of human-rights violations considerably decreased in the first years of perestroika. Political prisoners gained freedom. Transfer of mental institutions from the Ministry of Internal Affairs to the jurisdiction of the Ministry of Public Health put a stop to their use for repressive ends. Soon after convening in 1989, the USSR Supreme Soviet repealed bans on 'anti-Soviet propaganda' and 'slandering the Soviet system' and replaced them with a more concrete and narrow definition of sedition. According to another decision of the USSR Supreme Soviet, trial by jury was introduced for those facing a possible sentence of fifteen years or more imprisonment or death. All deportations of nationalities carried out in the Stalinist period were declared illegal and some steps have been undertaken to rectify these mass crimes. After decades of neglecting human rights, the creation of the first Human Rights Division at the Moscow Institute of Law in January 1988 marked a breakthrough in teaching the history, theory, and practice of human rights in the Soviet Union.

Constitutional reform in March 1990 instituted a presidential system and annulled the part of Article 6 of the Constitution that mandated 'a leading and guiding role' to the Communist Party in the political system of Soviet society. In December 1990, the Presidency was further strengthened by supplementing it with four powerful institutions: the Vice-presideny, the Council of the Federation, the Cabinet of Ministers, and the Security Council.

The creation of the Constitutional Supervision Committee, an embryonic form of Constitutional Court, was another step along the path to separation of powers and to the establishment of a law-governed state. The Committee was created in December 1989, but it was one year earlier, at the Nineteenth Party Conference, when the necessity of such a body had been proclaimed by Mikhail Gorbachev.

According to the Law on Changes and Additions to Article 125 of the USSR Constitution adopted by the Second Congress of the USSR Peoples' Deputies, twenty-five members of the Constitutional Supervision Committee (including its chairman and his deputy) were to be elected for ten-year terms by the Congress. In performance of their duties members of the Committee were subordinate only to the USSR Constitution. As to its functions, the Committee submitted to the Congress and the USSR Supreme Soviet findings concerning

The law went into effect on 1 January 1990. By late 1991 the Constitutional Supervision Committee had issued several rulings. Three of them are worth special mention.

The first decision was made in August 1990. It suspended a group of regulations that denied employees of certain professions and posts the right to appeal to the courts if they were fired. The professions and posts included teachers, physicians, and heads and senior officials of factories, plants, enterprises, etc. The regulations, which affected more than twenty million Soviet employees, were subsequently repealed.

A month later, in September 1990, the Constitutional Supervision Committee announced another decision declaring unconstitutional the first presidential decree of Mikhail Gorbachev. The decree, promulgated by the Soviet President in April 1990, transferred control of 'meetings, processions and demonstrations' in Moscow from the city council to the USSR Council of Ministers on the ground that Moscow was the federal capital. The Moscow City Council (Mossoviet) appealed this presidential decree to the Constitutional Supervision Committee. The Committee upheld the rights of Mossoviet, declaring that the decree violated existing Soviet legislation.

In April 1991, the constitutional watchdog made one more decision declaring unconstitutional a Presidential decree of January 1991, authorizing Soviet army and Interior Ministry troops to conduct joint patrols with local police for maintaining public order. The Supreme Soviet of the Russian Federation appealed to the Constitutional Supervision Committee to study the constitutionality of this decree.

The Constitutional Supervision Committee not only declared the decree unconstitutional, but examined Soviet armed forces codes and regulations in general. It declared that since the formula of 'the leading and guiding role' of the Communist Party in Soviet society had been removed from the Constitution, those articles in the army codes that required military commanders and authorities to obey the orders of local Party bodies violated the Fundamental Law of the USSR.

The last decision was more tentative than obligatory, but it accelerated the military reform in the Soviet Union which included the adoption of new armed forces codes and regulations. In May 1991, as a first stage of the military reform, the USSR Supreme Soviet amended the USSR Law on Universal Military Duty, according to which active service in the navy was reduced from three to two years. For soldiers, sailors, and sergeants. and serœeant-majors with higher educafion, active service was reduced from eighteen to twelve months.

The Constilufional Supervision Commillee, which was am important element in establishing the principle of separation of powers, was still evolving in late 1991. Its powers were still very restricted, and more moral in their nature than legal. The Committee could not annul any unconstitutional legislation. It could only suspend it for three months, simultaneously recommending that the body which adopted the legislative act repeal it. Otherwise, it could appeal to the Congress of the USSR Peoples' Deputies, the USSR Supreme Soviet, or the USSR Council of Ministers to intervene. In the final stage, the appeal of the Constitutional Supervision Committee could be set aside by a two-thirds vote of the total number of the USSR Peoples Deputies. However, the Chairman of the Committee, Sergei S. Alekseev - an academician, director of the Institute of Philosophy and Law of the Urals Department of the Academy of Sciences - was one of the most prominent and respected Russian legal scholars. His prestige and reputation enhanced the authority of the Committee.

The Constitutional Supervision Committee was the first body in the history of the Soviet legal system that could declare a law unconstitutional. No doubt, the creation of the Committee marked 'a significant shift towards a law-governed society' 7*. It 'forged the way for the establishment of the rule of law in the USSR' 8*. The Committee had not taken upon itself the full functions of a Constitutional Court. But we should not forget that it took the US Supreme Court seventeen years after its formation to assert the power of judicial review in the famous decision of Marbury v. Madison in 1803.

The creation of a USSR Constitutional Court was expected to be completed with the signing of a new Union Treaty between the union's components. Both early drafts of the Treaty (the first was published for discussion in November 1990; the second, in March 1991) 9* contained special provisions (Articles 16 and 17, respectively) concerning the formation of a USSR Constitutional Court and regulating its functions. Comparison of these provisions shows evidence of progress in the evolution of the Constitutional Court concept. While, according to the first draft, the Constitutional Court acquired the power of judicial review over the compliances of the federal and republican legislation with the USSR Constitution, the final draft contained an expanded definition of the sphere of the Constitutional Court's control, including decrees of the USSR President, decrees of the republican presidents, and normative acts of the USSR Cabinet of Ministers.

Both drafts contained provisions that the Constitutional Court was a judicial body resolving disputes between the Union and the republics and among republics on the constitutionality of their legislative acts. But while the first draft permitted the Constitutional Court to take a case into consideration only when all means of conciliatory procedures had failed, the second variant dropped the requirement for intermediary steps.

According to the first variant, a republic could demand the review of any federal legislation it claimed to contradict the republic's constitution or to exceed the competence of the Union. The Union could also demand review of any republic's law deemed to violate provisions of the Union Treaty, the USSR Constitution, or federal legislation (Article 9). The second draft contained more legally defined separation of powers between the Union and its components. A republic was entitled to challenge any federal law, not only on the ground that it violated the Union Treaty or its constitution, but also if it contravened the republic's legislation adopted within the limits of the republic's powers. The USSR was also entitled to challenge a republic's laws if they violated the Union Treaty or contravened the federal constitution or federal legislation adopted within the limits of its powers (Article 10).

Since the Union Treaty was to constitute the 'fundarnental law' of the USSR and provide the foundation for the new federal constitution, the provision of the draft treaty dedicated to the Constitutional Court gained in constitutional status.

Another step towards the 'separation of powers' concept was expected to be taken in the Russian Federation, the largest Soviet republic. In December 1990, the Second Congress of the RSFSR Peoples' Deputies amended the republic's constitution to establish an RSFSR Constitutional Court. Legislation to implement this provision for a Constitutional Court was to be introduced to the Congress to be convened in the autumn of 1991 10*.

The creation of the USSR Constitutional Court was only one of the provisions of the draft New Union Treaty which was to replace the Union Treaty of 1922. The new Treaty was to redefine relations between the republics and the centre, thus restructuring the whole legal and political system of the USSR. By late 1991 the draft had passed three stages of its development.

The first draft of the Union Treaty was published in November 1990. It was prepared when it became evident that the Law on Delimiting Powers between the USSR and the Subjects of the Federation adopted by the USSR Supreme Soviet in April 1990 did not completely meet the demands of the republics. The first draft of the new Union Treaty did not mention the words 'socialism' or 'socialist' at all. It proclaimed the supremacy of the Universal Declaration of Human Rights of 1948 and other international covenants. It guaranteed the primacy of individual rights and freedoms to citizens, free choice and development of forms of property, and methods of economic management. The draft declared the formation of a civil society and creation of a law-governed state as goals of the new Union Treaty.

The draft described the USSR as a 'sovereign federative state' with a common citizenship, currency, budget, and taxes. The Union enjoyed the primacy of union laws in matters of federal competence and the powers allocated to it by the republics. Republican legislation prevailed in all questions except those assigned to the jurisdiction of the Union.

After several months of discussions, the first draft was revised. The new draft, published in March 1991, expanded the rights of the republics, which were declared 'sovereign states'. In part, the second draft transferred from the Union to the republics responsibility for setting the rules for succession from the Union and accepting new members into the Union. It also strengthened the ownership rights of the republics. The second draft was approved by representatives of eight of the fifteen union republics.

The second draft of the treaty was published in a situation which was truly crucial to the fate of democracy in the Soviet Union. Reactionary and conservative forces, represented primarily by hard-line Communists, the military and security apparatus, and governmental bureaucrats, seeing that the rule of law policy undermined their positions and privileges, called for Gorbachev's resignation and for the imposition of a state of emergency. Foreign Minister and prominent reformer Eduard Shevardnadze resigned his post and warned about the dangers of dictatorship and civil war in the Soviet Union. Pravda published a commemorative article praising the positive effects of martial law introduced in Poland in December 1981, which was described as a stabilizing influence in the situation in that country. Confrontation between the centre and the republics led to the phenomena called the 'parade of sovereignties' and the 'war of laws'. Economic decline, strikes, inflationary wage increases, and interethnic violence led the country toward a catastrophic collapse 11*.

The first signs of a solution to the political and constitutional crisis of late 1990 to early 1991 came on April 23, 1991 when the USSR President met with the leaders of nine union republics to discuss the path out of the deadlock. The meeting resulted in a joint statement known as the 'Nine Plus One Agreement'.

The agreement consisted of five points that could be divided into two packages: political and economic. In its political package, the statement called for the adoption of a new USSR Constitution based on the new Union Treaty within six months of the treaty signing and for new elections to the federal legislative and executive bodies. The participants recognized the right of the other six republics - Estonia, Latvia, Lithuania, Georgia, Armenia, and Moldova - to decide questions of their own future. The economic package included provisions for joint anti-crisis measures, introduction of a stricter regime in key branches of the economy, and a moratorium on strikes.

At the beginning of June 1991, Anatoly Luk'yanov, Chairman of the USSR Supreme Soviet, declared that the final version of the draft Union Treaty was completed and would be submitted to all the republican legislatures for consideration. According to Luk'yanov's expectations, the treaty would be signed within two months after submission. Thus, the Soviet Union was on the verge of yet another, perhaps decisive, legal and political reform.

In May 1991, two more urgently needed pieces of legislation were adopted that strengthened the basis of the rule of law in the Soviet Union. These were the USSR laws 'On the Procedure for Exit from and Entry into the USSR by the USSR Citizens' and 'On State Security Bodies in the USSR'. Several drafts of both of them had been discussed for more than a year.

The Law on the Procedure for Exit from and Entry into the USSR by USSR Citizens (also called the 'Exit-Entry Law') had political, international, legal, and humanitarian significance. The law lifted restrictions on citizens' travel abroad. It restricted only the exit of people

The provisions of the act were to be gradually introduced with full implementation on 1 January 1993. So far, two provisions have been implemented. The first of them abolished a decree of 1967 stripping Soviets of their citizenship for applying for emigration on Israeli visa. The other repealed a decree of 1972 demanding repayment of educational expenses by emigrants 12*.

The emigration law caused a mixed reaction in other countries. Some of them (Italy, Austria) immediately adopted legislative acts which sharply restricted entry for Soviet citizens. It is expected that similar legislation will be passed in other countries worried about the possibility of an invasion of what are now post-Soviet emigrants. On the other hand, passage of the emigration law facilitated Western, especially USA, agreement to increased economic cooperation with the Soviet Union, and its successor states.

As to the Law on State Security Bodies, it was the first parliamentary act in the history of the Soviet Union that regulated the activity of the Committee for State Security (KGB). The law primarily provided a legal basis for exercising control over the security agency by the President, the Supreme Soviet, the Cabinet of Ministers, and some other governmental agencies. The law provided KGB officials with a legal basis for their activities in ensuring state security in the country. The principle of separation of powers was reflected in the provision of the act which delimited the powers of union and republican bodies of state security.

An overview of the process of the Soviet transition to the rule of law reveals that it has not followed a straight and steady path. The process had, and still has, a very controversial character. There have been ups and downs along the way. This may be explained in part by the fact that initiators of the process did not have a clear blueprint of the legal reform. The Soviet reformers were strongly influenced by economic, political, and legal romanticism.

Legislative euphoria had some positive effects. For example, from June 1987 to the autumn of 1988, approximately 1,200 federal and 7,500 republican decrees that hindered the Soviet transition to the law-based state were repealed. In the same period, more than 33,000 federal and 80,000 republican ministerial and departmental rules and regulations concerning economic and social relations in the country were abolished 13*. But often new presidential decrees, for example, resemble previous decisions and resolutions adopted by the Party Politburo or its Central Committee. They are likely to have similar effects: the more decrees, the less they are implemenled. There is not any institutional structure by which they may be implemented. The Law Enforcement Committee under the USSR President, established in May 1991, gave no clear indication that it could be effective. According to the presidential decree of 7 May 1991, the Committee's functions were to 'analyze practical work to apply the law along with the activity of law-enforcement bodies; organize their cooperation with other state bodies and public associations to execute USSR laws and other all-Union acts on questions relating to the fight against crime and the preservation of public order, generalize and circulate the positive experience of activity in this sphere; and help develop citizens' respect for the law and implement the policy of the rule of law' 14*.

Legislative euphoria cannot be separated from normative idealism, the tendency to view the law as a panacea for social problems, to make the law absolute without recognising the limits of any legal action.

The inconsistency of the initiator of perestroika, Mikhail Gorbachev, in his attitude towards economic and political reforms has also hindered the rule of law process. In 1990 and 1991 he changed his position 180 degrees on at least five major issues. These included his attitudes towards annulment of Article 6 of the USSR Constitution in December 1989; towards institution of the Soviet presidency in March 1990; in his attitude toward the '500-Day' Programme for transition to a market economy in mid-1990; in his shift toward authoritarianism in late 1990; and finally in his apparent reunion with democratic forces in April 1991.

The ability to manoeuvre, to reach compromise, is an important quality of a skilled politician. But political vacillation by the head of state undermines people's trust in his actions and policies, including his declared goal of a rule-of-law state.

The progressive intentions of the Soviet reformers were not always pursued through legal means. In the first days of June 1991, President Gorbachev and leaders of the main union republics and sovereign republics that were previously known as autonomous reached an agreement to drop the word 'Socialist' from the name the USSR had had since 1922 and, preserving the same initials, called it the Union of Soviet Sovereign Republics. Although this decision satisfied current political demands, it was unconstitutional in its character. According to the USSR Constitution, the name of the state may be changed only by the country's supreme legislative body, the Congress of the USSR Peoples' Deputies. Moreover, in December 1990, the Congress voted overwhelmingly to retain the name 'Union of Soviet Socialist Republics'. A law-governed society cannot be built on violation of the law, even in pursuit of popular ends. A legal goal can never be attained through illegal means.

Lack of legality has marked legal developments at the level of the republics as well. For instance, the decision to hold a referendum on a creation of a popularly elected president of the Russian Federation was made by the RSFSR Supreme Soviet. But the questions for the ballots were determined by the Presidium of the RSFSR Supreme Sonet, although neither the republican constitution nor the Law on Referenda empowers the Presidium to make such decisions. Although over 70 percent of the votes in the RSFSR supported the institution of a Russian presidency, the abuse of law in the preparations for the referendum legally tarnished the results.

Unfortunately there have been many such examples, even in the most democratic (by Soviet terms) republics.

It would be unrealistic to think that what had been systematically destroyed for seven decades could be rectified in one or two sessions of the USSR Supreme Soviet or in a chimerical '500 Days'. According to a well-known Soviet dissident, living in exile, 'the defects in Soviet law have been accumulating for seven decades, and it will take decades to eliminate them' 15*. It is not easy to change public consciousness that for seven decades got used to seeing the law and everything connected to it as an evil and hostile power. If the process is to be completed, the Soviet transition to the rule of law will take a long period of restructuring legal institutions and Soviet legal doctrine, advancing legal and judicial reforms, and the building of a mature political and legal culture by the people. In the short term, the evolution to the law-governed state will undoubtedly experience many ups and downs. Competition for power, and struggles for and against reforms in the republics that have succeeded the Soviet Union, will cause an unsettled, mixed period in the history of the country. But the process has already started. Popular election of the first Russian President, the strengthening of democratic forces in the largest of the former Soviet republics, and the end of communist party rule, provide better prospects for the successful transition to the rule of law than have ever previously existed.


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