Ernest Ametistov, LL. D,
Judge, the Constitutional
Court of Russian Federation
CONSTITUTIONAL DEVELOPMENTS AND PROSPECTS OF RUSSIA
Two months ago - on October 3 and 4 - the wopld was shoked by CNN report on the bloody riot and its suppression in Moscow. These terrible events completed a long period of Russian history - the period of Communist and Soviet dominance over the people of Russia.
What was the bakcground of October events? To give reply to this question it's necessary to analyse whole development in Russia during recent several years.
The first putsch of August 1991 resulted in the collapse of the Soviet empire and displacement of the Communist Party of the Soviet Union from its leading position in the central echelons of power. Russia started, as it seemed, its exodus from totalitarianism to democracy. However the former masters of the country - the representatives of the Communist party "nomenklatura" - continued to occupy its leading posts on the middle levels of government - in the industry, agriculture, army, police, secret police etc. The communists preserved strong positions in the Russian parliament - the Supreme Soviet of Russian Federation and especially in its highest unit - the Congress of People Deputies.
As to local Soviets - in the republics and regions-their old masters - former leaders of local committees of the Communist Party - always kept them in their hands.
Surely just after the putsch #1 President Yeltzin and his government had enough opportunities, on the wave of people indignition, to supress any communist activity, to dismiss old parliament, to hold new election. And they probably could succeed in it and avoid a strong opposition. But the question was: was did the law and democracy succeed in that case? For sure - no!
And they chose another way - the way of development of democracy, the way of political pluralism and the state governing by law.
Thus the Russian Government began to carry out a unique experiment: realisation of fundamental revolutionary reforms without revolution and violence.
They made this choice in the country which survived 73 years of cruel dictatorship, in the country with complete lack of democratic traditions, with very low level of legal and political culture, with overcentralised economy which was practically on the edge of crash. Nevertheless it was absolutely deliberate choice because the only alternative of that choice would be continuation of totalitarian regime under new "democratic" label what was unnatural and impossible for liberal mentality of those people.
In these conditions - actually in the situation of diarchy - the new democratic Government of Russia started its deep, structural economic and political reforms in the beginning of 1992. The strategical end of these reforms was to establish conditions for free market and to draw all stratas of society, including former party nomenklatura, into this economy. Such peaceful way of development, as the reformers thought, could moderate negative consequences of the reforms for the population, soften resistance of former rulers and avoid civil war.
At first the Parliament permitted the Government to implement its politics and even granted the President some special power to conduct economic meansures by his decrees.
The situation began to change radically in the springtime on the 1992. There were two main reasons of the changes.
The first and the most important of them was the following: only small part of former communist rulers had managed to adopt itself to the new conditions and to find its place in the market economy structures. Most of these people felt that they were loosing the power, in paricular the control over the state property, and that power was passing to the newclass of private owners step by step.
The second reason was connected with conditions of some stratas of population which especially suffered of rise of prices, inflation, competition caused by the reforms. There were among them aged workers, workers and employees of the military industries, marginals and some others. Many of them got used to live poorely but with support and protection of the state. Now this support disappeared and they felt unprotected from that new strange world which was surrounding them. Just this kind of people formed the social basis for the opposition to Yeltzin's Government.
Meanwhile this opposition inside of the Parliament and outside of it rose and encreased. The Communists rapidly found the common language with some fluctuated deputies as well as with extreme nationalist and even nazist groups and parties. Thereby they succeded in the task which even Stalin and Hitler failed to resolve: to consolidate red and brown forces in the common struggle against freedom and democracy.
Democratic wing's position was weakened also by transfer of many deputies from the legislative body to the executive structures of power. As a result in the end of 1992 the opposition in the Parliament - under leadership of speaker Khasbulatov and Vice-President Rutzkoy - felt enough strong to initiate its first general offensive against President yeltzin and his Government. The opposition ysed two main weapons in its struggle.
First of them was the Constitution of Russian Federation.
The acting Constitution of Russia was adopted in 1978 - at the peak of Brezhnev's time - as "the Constitution of developed socialism". It was full of solemn declarations and juridical fictions: no one and never implemented it in practice.
But in the last years, under influence of perestroika and August victory of 1991 some progressive amendments were introduced into the Constitution, for instance, the provisions on separation of powers, human rights, development of market economy etc. At the same time some provisions inherited from the communist past were preserved - such as development of "socialist" democracy, liquidation of distinctions between classes and social groups, observance of the Constitution and laws of former Soviet Union (to understand whole absurdity of this last provision it's enough to imagine an article about observance of laws of British Empire in the Constitution of the United states!).
As a result the Russian Constitution was becoming more and more ambiguous and contradictory. However this legal contradictoriness reflected rather exactly real contradictions and diarchy in Russian state and society.
The most spectacular constitutional and real contradiction was the following.
From one hand into Article 1 and 3 of the Constitution included provisions on separation of legislative, executive and judicial powers as an "unshakable ground" of the constitutional system in Russia. In accordance with these provisions all three powers got relative authorities to fulfill their tasks (though for fairness'sake one should say that from the very beginning there were no real checks and balances between legislative and executive powers: for example the Parliament had right to impeach the President, the President had no right to dissolve the Parliament).
From the other hand in accordance with the Article 104 the Congress of People Deputies continued to be the highest body of state power and could consider and resolve "any question under competence of Russian Federation". This Article of the Constitution reflected the main idea and slogan of the former Soviet state - "All power to the Soviet!" what in practice concealed sovereighty of the Communist party. And precisely this constitutional provision was effectively used by the communist and nationalist opposition in its battle against President Yeltzin and his Government.
In last December the opposition passed through the Congress of People Deputies some constitutional amendments which deprived the President of his executive power almost completely. In particular the Supreme Soviet acquired the right to abolish presidential decrees and orders and - in some cases - displace him from his post without any procedure.
These amendments gave the opposition the "legal" opportunities to paralyse any reformative meansures of the Government during all subsequent period of time. Doing so the opposition pursued two strategic aims: first - to stop and compromise the reforms completely; second - to provoke some "unconstitutional" steps of the President and the Government in order to get a pretext to overthrow them on "legal" grounds.
To reach this last aim the opposition used its second weapon - the Constitutional Court.
The Constitutional Court of Russian federation was established in 1991 as an important step on the way to the state ruling by law in Russia. 13 of 14-judge bench were elected by the Congress of People Deputies to limited life tenure (until age of 65) with the remaining two seats to be filled later. After their nomination in November of 1991 the judges elected the Chairman of the Court. Valery Zorkin - former professor of Police Academy - held this post.
In accordance with the Statute on the Constitutional Court its juridiction included the examination of constitutionality on four topics: domestic legislation and international treaties of Russian federation; judicial and administrative practice; political parties; and behaviour of high officials of Russian Federation, first of all the President and Vice-President.
The Statute endowed the Court with strong power. It proclaimed the Court's independence and excluded any outside influence. All Court's rulings, opinions, massages and demands were obligatory for all adressees whithin the Russian Federation. The Court had the right to initiate legislation in the Parliament. All of the Court's decisions were final and not subject to appeal or review.
The most significant restreins which the Statute imposed on the Court were the following: the Court should not review political questions and should rule only on qyestion of law; it might not examine questions of fact; judges were prohibited from publicely voicing their opinions anywhere except in the Court sessions on matters under review or accepted for review prior to the Court's final decision. They were prohibited also to be members of political parties or to represent political and other professional activities except to teach law in the universities and colleges.
During almost two years of its activity the Constitutional Court tried 29 cases including 19 on constitutionality of legislation, 2 - on constitutionality of behaviour of the President and 8 - on individual complaints about constitutionality of judicial and administrative practice.
Considering the last category of cases - on individual complaints - the Court showed itself as an effective and impartial supporter of human rights and freedoms: all its rulings on these cases were based on the firm legal ground and pronounced in favour of plaintiffs.
As to other fields of activity - examination of legislation and behaviour of the President - the Court turned out to be deeply involved into political struggle between the opposition and the Government. This trend especially displayed at the end of 1991 when the Chairman of the Court and majority of judges who supported him made absolutely deliberate political shoise - they started to maintain the supreme Soviet in his struggle against the president and openly participate in political actions what was gross violation of the Statute of the Court. Since then most of the Court's decisions on disputes between the Parliament and the President were taken in favour of the opposition, based more on political than legal grounds and seriously worsened the situation in Russia. Among them, in particular, there were decisions on the Communist Party and National Front of Salvation cases which made way for the most reactionery and subversive political forces which later initiated riots and bloodshed in May and October of this year.
But especially fatal were the Court's decisions on April referendum and Presidential Decree on September 21.
In April of this year, after long hesitation, the Supreme Soviet still took decision to coduct the referendum on four questions: 1) do you support the President Yeltzin? 2) do you support the social and economic policy of the Government? 3) do you want the early election of President Yeltzin? and 4) do you want the early election of the acting composition of the Congress of People Deputies?
Just after adoption of this decision a group of people deputies initialed the case on its constitutionality in the Constitutional Court. They insisted that all four questions of the referendum had "constitutional character" id est demanded to amend the Constitution. It meant that in accordance with the Law on the Referendum it would be necessary to count the votes not from quantity of people who came to participate in the referendum but from all number of citizens who had the right to vote. The Constitutional Court ruled two first questions "non-constitutional" and two last questions "constitutional". Thereby it established the different basis for counting of votes.
The minority of judges didn't agree with this ruling. They pointed out in their dessenting opinions that the talk was not about early elections of any President and any people deputies but about if only given, present President Yeltzin and present composition of the Congress of People Deputies. In this case to make some amendments to the Constitution would be absurdity. There would be amendments ad hoc what was absolutely unnatural for Russian constitutional practice.
But the Chairman of the Court and majority of judges didn't support this point of view.
In the course of referendum the Majority of citizens voted in favour of President Yeltzin and the social and economic policy of his Government. Ad these results were admitted valid. But the largest absolute number of people voted in favour of early election of people deputies. However this result wasn't admitted valid thanks to the ruling of the Constitutional Court because this quantity was not enough if to count from all number of citizens who had the right to vote.
Thus the final act of the constitutional crisis started. The results of the April referendum established absolutely new legal situation. In accordance with the Constitution and the Law on the Referendum its decision has the highest juridical force and must be implemented directly. So the referendum created new highest legitimacy in Russia.
Now the President and the Government not only had the right but were obliged by the Constitution and the Law to conduct their social and economic policy towards market economy because it was the highest will of the Russian people.
But the main obstacle on this way, as earlier, remained the opposition in the Parliament. In last summer it started its final attack against the President. The parliament abolished all presidential decrees on the privatisation of state property and paralised the activity of all governmental structures which dealt with it. Thereby it openly violated will of the people of Russia because the privatisation was one of the main tools of social and economic policy of the Government that was approved by the referendum.
The President was actually driven into the corner. In accordance with the fundamental provisions of the Constitution and the Law he had to fulfill and protect will and interests of the people. But the same Constitution, by hands of the opposition and the Constitutional Court, fully deprived him any means to do so: he had no rights to abolish the acts of the Parliament or to dissolve it. The contradictions of the Constitution reached their climax.
And the President made his choice. By his Decree on 21st September he dissolved the Parliament and fixed the date of new elections and the referendum on new Constitution. Thereby he deliberately violated some articles of the Constitution in favour of other fundamental articles. Diarchy in Russia was ended.
As a matter of fact the Constitutional Court - not the President -should make this choice. It was its sacred duty and it could do it much time ago. In last winter Chairman Zorkin publicy promised that the Court would regard the competence of the Congress of People Deputies taking in account the principle of separation of powers. But the promise left the promise.
Instead chairman Zorkin urgently convened the session of the Court and with support of its majority, absolutely not considering the arguments of other judges, with gross violations of the Constitution and the Statute on the Court, after only two hours of the session took decision about the automatic impeachment of the President. At the same time the Chairman and his supporters did all their best not to consider the constitutionality of parliamentary acts on the impeachment of President Yeltzin, "inauguration" of Vice-President Rutzkoy, introduction of death penalty and other last crazy decisions which were adopted by agonizing Congress of People Deputies.
Thereby Zorkin and his supporters in the Court actually created the "legal" basis for resistance of Moscow "White House" by its defenders and made their own contribution into the riot and terrible bloodshed that were organised by the "red-brown" opposition in Moscow on 3rd and 4th October of this year.
On October 7 President Yeltzin issued the Decree on the Constitutional Court in which he noted that the Court "transformed from the body of constitutional justice into the tool of political struggle of great danger for the state". The sessions of the Court were suspended until the adoption of new Constitution though the judges preserved their status, rights and guarantees. Zorkin applied for retirement from the post of Chairman but also remained as a judge.
So the first constitutional crisis in Russia finished.
What conclusions could be done from that crisis and what prospect are there for the future on the constitutionalism in this country?
1. Democratic forces of Russia, inspite of all their aspirations for peaceful development of the reforms, failed to do it by this way in full. Nevertheless the Government menaged to prevent the spreading of civil war on the scale of whole Russia. Probably the government could avoid the riot and bloodsheed at all taking more strong and determined meansures in the frame works of the law to stop destructive and subversive activities of the extremist parties and movements beforehand. This lesson should be taken into account for the fiture.
2. The battle of the Parliament against the President was not only question of competention between different branches of power or even personalities as it was interpreted by some spectators and analysts. It was the battle between opposite ideologies, between communism and democracy, lavery and freedom, past and future. Thanks to CNN report from Moscow on October 3 and 4 all people around the world could see what communism means in reality and what consequences it brings to humanity. Victory of the President in this battle saved not only Russian people but peoples of other countries from the repetition of the worst forms of totalitarianism and real danger to the international peace and security.
3. An outstanding feature of this battle was that both sides, during all their dispute, used the same argument - the Constitution. It was the first case in the history of Russia when the opponents in a civil conflict refered to the legal base - as a rule such conflicts were always resolved only by force without any reference to the law. And the participants of that last conflict in Moscow also restored to force after all. But even changing juridical paragraphs by submachine-guns and tanks they continued to assert that they protected the Constitution. Probably one could regard this situation as a paradoxial evidence of increased role of law in Russia. Nevertheless we faced an obvious fact: the Russian Constitution became not a "social compromise" or "social contract" as it presumed to be in the civilised countries but the effective tool of political struggle. That was precisely essence of the constitutional crisis in Russia.
4. The fatal role in this crisis belonged to the Constitutional Court, at least to its chairman and majority of judges who supported him. Thanks to them the Constitutional Court also served as a political tool in the hands of opposition. The politisation of the Court originated from the very formally proposed by the political factions of the Supreme Soviet. Naturally each of these factions supported the candidates who corresponded with its political views. The professional and moral qualities played secondary role. Discussion on the candidatures also was very short: each candidate had only five minutes to declare his or her views and to answer the question before the Congress of People Deputies. Most of candidates were not well-know lawyers and displayed themselves only being elected judges.
Probably it was possible to elect more professional, more independent, more responsible persons. But still it was impossible to avoid any political influence in the country crammed by political struggles and contradictions with the same contradictory Constitution. In this sense the creation of the Constitutional Court in Russia was premature. In any case the Court should not to have such great power in the situation of political and legal unstability.
5. Quite obviously that the future of the Russian constitutionalism as well as Russia itself will depend on the outcome of the general election and the referendum on December 12 of this year. 13 political parties will participate in the election. They nominated the candidates into new Russian Parliament - the Federal Assambly with two chambers: Council of Federation - the upper chamber and State Duma - lower chamber. Thus the Soviet Power will finish its history.
In the course of the referendum the people of Russia will decide the fate of new draft Constitution of Russian Federation. The most important features of this draft are the following:
a) supermacy of human rights and freedoms. The Constitution recognises human rights and freedoms as the highest value. Their protection is the obligation of the state. The list of rights and freedoms and their formulation in the Constitution is in full accordance with international standards. The Constitution stipulates its direct application. It means that constitutional rights and freedoms will be protected in the courts. Thus new and very important step will be done in the constitutional development of Russia. The thing is that all Soviet Constitution were never applied in practice. The acting Constitution permitted to apply its norms only in the Constitutional Court. The new Constitution will permit its application in all the courts of the state;
b) separation of powers. In accordance with new Constitution the legislative, executive and judicial bodies are independent. The President and the Government will have more power than they had before and this is undoubtedly the impact of recent events. However checks and balancies are established to support equilibrium. For instance the President may dissolve the Parliament and the Parliament may impeach the President. The President may not abolish the laws of the Parliament and the Parliament may not abolish the decrees of the President. But the most important thing is that the competence of every branch of power is defined very precisely without any contradictions which were so many in the former Constitution. The competence of the Constitutional Court is more limited than it was beforehand. Its composition is increased to 19 members and its future will depend on the nomination of new judges who probably will help to change the situation in the court to the better;
c) federalism. Russian Rederation includes 21 national republics and many other regions. All of them concluded the Federative Treaties with the Central Government about separation of competence. All these treaties are implemented in the draft Constitution which precisely stipulates three kinds of competence: exeptional competence of the federal bodies, joint competence of federal bodies and subjects of the Federation and st last exeptional competence of the subjects. As a resul the subjects of the Federation have rather broad competence in the frameworks of their power and even may adopt their own constitutions and charters. But they have no right of secession because the Russian Federation "secures integrity and inviolability of its territory".
Surely the draft Constitution has its shortcomings and bears some obivious imprints of its time. But in the present situation it is the only legal garantee to preserve civil peace in the country. If the people of Russia approves the new Constitution and elects decent members to the new Parliament we'll overcome the crisis and continue reforms towards the state ruling by law. If not, Russia will face new riscs and ordeals. Being an optimist I hope for the best.
