In: THE HARRIMAN REVIEW. July 1995, pp. 21-35. Columbia University, Harriman Institute, New York, USA
THE PRESENT AND FUTURE OF RUSSIAN CONSTITUTIONAL ORDER
Oleg G. Rumyantsev & his study addresses the dynamic of constitutional and political practice in recent times and the future of Russian reformation. The reader can scarcely comprehend the major trends of the future development without understanding the features, structures and principles of constitutional order as seen by a Russian constitutionalist Some of the ideas, structures, values and principles as envisioned by the author may provoke discussion—and that is one purpose of this paper.
I. THE CATEGORY OF JUST CONSTITUTIONAL ORDER
It is not enough to have merely a written constitution—even a written constitution does not guarantee constitutional order. Both social and state order may be non-constitutional if the state interferes through illegal, often power-based, measures, as is often the case in Russia today.
Constitutional order, on the contrary, should provide that the state influences the social order to achieve the Common Good by establishing the legal norms for society and by guaranteeing their implementation on the basis of legitimate sources of law. (Throughout this essay the English term "law" is employed in its sense of distinguishing between "higher law" as evolved though judicial and scholarly intellection, and "statutory law" as evolved by legislatures of whatever kind. This differentiation is understood by the Western reader as the differentiation between droit and loi, Recht and Gesetz, diritto and legge, etc.).
One may view the 1993 Constitution as a step toward constitutional order in Russia—by its announcement and declaration of the major principles of such an order. At present these principles more resemble promises, goals and unfulfilled obligations of the Russian state than legal norms in the formal sense, that is, norms that entail the immediate implementation through a balanced set of necessary institutions. Certainly, these principles do create the possibility for Russia to accomplish its transition from state order to a truly constitutional order.
The inner conflicts of the most recent constitutional reform in Russia can be more easily comprehended if analyzed as a cultural phenomenon, a part of a broader legal and philosophical argument about the values that should guide the lives of our renascent civilization. This debate has inevitably sharpened in the contradictory and devastating events of 1990-94, when the concept of the Constitution was misused as a powerful weapon, leading to a deep crisis of social consciousness and general mistrust of the idea of a law-obedient state.
I would like to point out the intense connection between a constitutional order and the social ideal. The development of an emancipated person is determined by material factors, conscious (or rational) factors, and spiritual factors. All of them play an important regulatory role in society. Therefore, one cannot reduce the importance of morality and justice as the Russian people seek to understand the meaning and purpose of law-based Constitution in Russia after its reformation.
By developing the institutions of a more just order, we attempt to approach the ideal conditions of a socium. Precisely these institutions form the basis of a "constitutional society." This aspiration toward a social ideal has been a clear part of social life throughout Russian history, even during its irrational episodes.
Here one sees the close connection between the spirits of law and morality: when law epitomizes morality it ensures a definite threshold of good and diminishes equally the proportion of evil. I share the understanding of the social ideal in Russia as described by P. Novgorodtsev, a prominent lawyer of the last century: a freely found solidarity of the society together with justice provided by the state.1
Indeed, after the radical experiments of the twentieth century it became obvious that both Russian society and the Russian state must provide today a balance between the eternal opponents of "order" and "justice" through a self-reinforcing system of justice (spravedlivost', Justice as Right Order, or QemiV in the ancient Greek understanding). Of all the values it is the most important for our constitutional order. Its constitutional role may emerge in the forms of legal justice, social justice and historical justice.2
Furthermore, it is precisely justice in the Russian environment that may provide a constitutionally- based system of both collective and individual liberty. This system is an essential step toward the absolute state of socium, although the absolute ideal will never be attained in a world of relative phenomena. Just constitutional order, like any ideal, is temporary, leaving room for development, progress and revision—all advanced by the same measure of strength as that attained by the system of free solidarity.
Russian constitutional order, in my view, should be based on a system of concordant concepts and values that are realized by the society through the system itself. Such a social and legal organization of society must provide fair, stable and legal relations between the individual, the civil society and the state, while making the system serve positive, ethical imperatives and the fundamental legal principles expressed in the constitution. The constitution thus should become the highest legal form that governs that system of relations through which the public controls overstate power are clearly defined.
The constitutional fundamentals may be divided into the following four interdependent levels:
•Fundamental values to which society is oriented in its progress toward a more perfect order; they are mainly to be found in the Preamble.
•Fundamental principles that represent concepts for the practice and integrity of constitutional order and demonstrate its objective basis.
•Institutions, norms and legal mechanisms through which the fundamental values and principles receive their explicit expression.
•The creation of a legal tradition, which Russia desperately needs, for the reasoning of jurists, a developed legal literature, and philosophically disciplined teaching and learning throughout Russia about fundamental values and fundamental principles.
Constitutional fundamentals on the level of legal principles can be derived:
•From the meaning of values; from the descriptions of the Russian constitutional state as democratic, republican, federal, social and secular.
•From the combination of sovereignty and participation in the Union of Republics and in the world community.
•From the relations, on the one hand, operating between the state and supremacy of law, and on the other hand, operating between both its peoples and personal autonomy.
•From the assured integrity and continuity of constitutional order.
These principles of Russian constitutional order (osnovy konstitutsionnogo stroia) should embrace the following dozen points:
•State sovereignty; the autonomy of human beings, their human rights and freedoms; the equality of their rights and freedoms.
•Rule of law; supremacy of the Constitution; public understanding of legislative acts. •Separation and cooperation of different branches of state power with a strict system of checks and balances.
•Political and ideological pluralism in a multi-party system.
•Federalism; division of competencies and legislative concurrence between the federal government and constituent members of the Federation.
•Integrity of common economic space of the Federation; legal equality of forms of economic activity in a mixed economy.
•Social state (from "Der Sozialstaat"); the obligations of state organs to society, including major outlines of social policy; social partnership as a basic principle of inter-cooperation.
•Self-government; local self-government, cultural autonomy; independence and development of institutions sup- porting civil society.
•Russia in a Union of Republics; Russia as a member of the world community; stability and integrity of constitutional order.
The governance of norms-goals, norms-tasks, norms-definitions bears significant political meaning, since the modern constitution should coordinate the aims of the state with those of society. In addition, this governance will shape the new political order for Russia and unite some basic liberal ideas with the traditions of Russian statehood and the nation's aspirations.
This set of Russian constitutional fundamentals emphasizes that Russian society, with its unique civilizational features may integrate easily with universal principles and with those very societies such constitutional principles are meant to sustain. In sum, constitutional order must encourage the preservation and furtherance of some key features of Russian statehood. This will lead to the ineluctable symbiosis of the Russian national and universal heritages. The current Constitution does not provide for such a symbiosis.
During 1990-93 our Constitutional Commission3 managed to write the bulk of the above-mentioned principles into the draft Constitution and to incorporate the amended Constitution of RSFSR from 1978. They are largely used in the present Constitution as well: the first basis of fundamental values is to be found mainly in the Preamble; the second basis of fundamental principles in Chapter 1 of the Constitution, "The Principles of the Constitutional System" But work on the third basis of institutions, norms and legal mechanisms is in the beginning stage.
This situation brings the whole system to a state of incompleteness and disintegration, which forces us to contemplate the great distance between the formal, written Constitution and the living, real one. Furthermore, this gap diminishes the normative effect of Article 15 (1) which states: "The Constitution of the Russian Federation shall be the supreme law and shall be in direct force throughout the territory of the Russian Federation".4
II. THE 1993 CRISIS AND ITS CONSEQUENCES FOR RUSSIAN CONSTITUTIONALISM
The Russian reformation of the 1990s sometimes lacks the features of deliberate and effective constitutional process. Balanced reformation requires continuity during transition and a shift from revolution to evolution of state order to foster a true and intelligible constitutional order. It is of the utmost importance to find mutual respect and a balance of interests between the liberals and patriots, federal and regional nomenklatura, different elites and the politically active strata of the people.
The 1993 constitutional crisis is replete with bitter unconstitutional practice, extremism and intolerance. Totalitarian ways of thinking, camouflaged by democratic rhetoric, were senselessly combined with violence to crush parliamentary legality. These forces cannot restore civil accord nor build respect for the Constitution. Indeed, 1993 will be remembered as a year of catastrophic political crisis in Russia when the abuse of direct democracy twice served to establish a constitutionally-fixed autocratic regime.
Among the circumstances preventing compromise we should mention the following:
•The collision of different socio-cultural approaches toward the social development of Russia, primarily between the traditionalists and radical "reformers."
•The clash of different economic interests of the new business class and the state-controlled economy.
•The incomplete nature of the new constitutional order, which tried to ensure both division of powers and checks and balances, which had no precedent in institutions and traditions of the past.
•The lack of mechanisms for constitutional or social partnership both in the state and society with their "raw" political culture. •Geopolitical and psychological crisis caused by the painful disintegration of the USSR.
•The personality of Boris Yeltsin, an unpredictable Bonapartist, who demanded more powers to proceed with the constant fight against the "inner enemy7'—the Communist Party, Gorbachev, USSR, Russian Parliament, Rutskoi and Khasbulatov, Chechnya. (Who will be next? Perhaps Yeltsin's liberal allies of 1992-93.)
Western scholars often repeat, taking the lead from some Russian politicians, the incorrect thesis that the crisis was constitutional, i.e., the crisis was a result of a "bad" Constitution (Basic Law) of the RSFSR from 1978 with amendments of 1990-92. One should argue with such statements that a "cafeteria-style constitution" "at odds with itself" allowed contending politicians to choose sections and clauses to suit their political interests.5
The Constitution was quite thoroughly polished by the I, II, III, V and VI Congresses in the early 1990s—the only large contradiction that remained was Article 105, which granted the Congress the legal status of "highest" organ of state power, which may consider ANY question in the federal jurisdiction. Article 105 contradicted the separation of powers and the new strong presidency, which anti-Soviet propaganda found to be a powerful argument. The truth is amazing. Congress made use of this clause precisely once, when it delegated to Yeltsin powers of executive decree rule in the econnomic sphere! Later, when Congress refused to pro- long this decision, Yeltsin appealed for its dismantling...
The clash of economic interests, not the disagreement between the President and the parliamentary republic, is of basic importance to understanding the 1993 crisis.
In 1991, primarily after his election as Russian President, Yeltsin several times provoked the Soviet leadership by blocking the new Union Treaty, by taking under Russian authority the property of the Union, etc. This caused the conservative attempt of a state of emergency—or the August 1991 coup. After the "victor/' of the Russian democrats, the V Congress in November 1991 delegated to the President for a term of one year the right to rule on economic reform issues by decree. During this year privatization in the capitals and larger cities was totally put out of control and given to the mayors. The Gaidar hard monetarist economic policy brought the state sector of industry and the spheres of education, science and medicine to a deeper crisis.
The VI Congress (April 1992) warned Yeltsin to follow a more moderate tempo and balance the role of the state in economic developments; it abstained from cutting the course of reform. The VII Congress in December 1992 was not going to prolong Yelstin's decree rule. It was obvious that new elites in business, mass media and foreign policy will not allow Yeltsin to surrender.
We proposed a legal form of reaching a consensus.
Upon the resolution of the VII Congress of People's Deputies in December 1992-January 1993, the Constitutional Commission prepared a draft text of the basic principles of the Russian Constitution for an all-national referendum. The "yes" vote, as I had hoped, would provide a platform for political and legal unity. This text sought to solve several issues: to adopt a new Constitution; to re-elect both branches of power and lead every citizen to understand the value of constitutional order. Yeltsin refused to support these principles at the plenary meeting of the Constitutional Commission, held on February 7,1993.
Instead, Yeltsin proposed a set of questions that split society by forcing it to choose whether it preferred Parliament or the President. To pose the question in such a way was improper, since both were bona fide constitutional institutions, the former strong, the latter out of control, projecting a complex, confusing and kaleidoscopic mirror of views within a tumultuous society.
The referendum of April 25, 1993, was conducted under the unprecedented one-sided propaganda of the state-owned media, which supported the radical liberals. The results were counted by "commissions," formed not according to the law, but nominated by presidential decree. The active involvement of financial and informational elites combined with the uncontrolled activity of the Yeltsin-nominated "commissions for referendum" brought about a pyrrhic victory.
The Russian Parliament had evidently been pushed to the margins of political life. Moreover, the idea of representative democracy and parliamentarianism suffered a severe blow in Russians' fragile consciousness, leading to a contradictory mixture of outrage, revenge, anarchy and apathy.
All this helped the nihilists from the powerful administrative system in their plot against the Constitution, the Supreme Soviet, the Constitutional Court and the regional Soviets. The anti-state coup of September 21-October 4, 1993, was the logical consequence of the whole chain of abuses of law committed during the period 1991-93. The last outcry of rule-of-law was made by the Constitutional Court of Russia on September 21, 1993, when it decided that President Yeltsin's decree "On Gradual Constitutional Reform in the Russian Federation," dated September 21,1993, violated 8 articles of the current Constitution, which was grounds for impeachment procedures or other mechanisms provided by the Constitution.6
The X (Extraordinary) Congress of People's Deputies adopted—on my proposal—a resolution on simultaneous re-elections of the President and people's deputies no later than February 1994, with the proviso that constitutional legality be restored in Russia. The difficult negotiations with the Kremlin were conducted in order to persuade it to come to the "zero variant" and further re-elections. These proposals were not met with success...
On October 1, the meeting of representatives from the constituent members of the Russian Federation held in the building of the Constitutional Court adopted a memorandum on the "zero variant" and further re-elections. I was asked to prepare a draft law on that topic, which was completed and brought to the besieged Parliament on October 3,7 but it was already too late. The spiral of civil war had begun its cruel work.
Former Prime Minister Yegor Gaidar and other radical liberals in January 1995 informed the bewildered West about the possibility of a military take- over and the threats to democratic institutions. He did not wish to acknowledge that Russia had been living under authoritarian role for over a year— during the Yeltsin-Gaidar coup in fall 1993 the Constitution was denounced, its defenders riddled by tank shells, the Constitutional Court and regional legislatures either suspended or dispersed.
All that remained for the victory of Yeltsin's Bonapartist party of power was to ensure its constitutional role. This was done through the referendum on the Constitution. Yeltsin legalized his regime by taking the formally democratic Constitution and changing the heart of it, the form of government to one without checks and balances tailored personally for the abnormal appetites and ambitions of one politician.
The vote on the Constitution on December 12, 1993 repeated the similarly illegal procedures of April 1993. This is the primary, but not the only, reason why the Constitution of the Russian Federation (December 1993) cannot be considered a fully legitimate document One should also mention the following:
•The draft of the 1993 Constitution was issued through presidential decree; its text seriously contradicted the draft elaborated by the Constitutional Commission and even the draft approved by the special Constitutional Consultative body, which worked in the Kremlin during summer 1993 and in whose manipulated procedures no opposition was permitted.
•The constitution demanded only a majority of those who voted, not a majority of registered voters, as was required by the law on referendum.
•The counting commissions worked outside the control of regional councils, the majority of which were banned or suspended. The regional administrations were forced "to produce" good figures; the electoral commissions on the local level were cancelled, because there were too many to be manipulated.
•The final results of the referendum appeared a fortnight later than required. Although a 56% participation of voters in the constitutional referendum was declared, later results showed only 46.1% participation.8 Indeed, the referendum failed in 13 regions.
The opposition questions the legitimacy of a Constitution9 for which the majority of the population did not vote. Nor does the opposition respect the Constitution because of the price the nation paid in October 1993. The reader must clearly acknowledge these circumstances.
Nevertheless, Russia got some sort of Constitution. During September-December 1993 it had none at all. Later, the opposition to Yeltsin decided to acknowledge it as the basis for electing a Constituent Assembly, which will adopt the truly legitimate Constitution of the Russian Federation. Interestingly, they observe many constitutional norms which are still ignored by the executive branch.
III. THE FATE OF SOME CONSTITUTIONAL PRINCIPLES IN RUSSIA TODAY
The 1993 crisis marked a significant milestone in contemporary Russian history. It ended the two stages of the short and remarkable history of democratic reformation: (1) the 1988-89 perestroika period, which started modernization from above, and (2) the years 1990-92 and the First (post-communist) Russian Republic, an inspirational reply from below.
The outstanding feature of that period is the broad emancipation of civil society in different forms.10 The link between the awakening aspirations of civil society and the reformed institutions of the state brought about the necessity for establishing a new type of public and legal relations between the two sides, which was an essential component of Russian constitutional reform in the early 1990s.11 The year 1993 destroyed the fragile miracle of constitutionalism and put an end to the renaissance of civil society as an organic part of Russian polity and its balanced relations with the West.
Let us review some constitutional fundamentals in today's Russia—or "The Second Republic," as Robert Sharlet has termed it.
Russia and the Rule of Law
Russia made significant steps toward rule of law by creating in 1991-93 some guarantees and institutions during its judicial reform. Unfortunately, the weakness of that principle, of law and legal institutions encourages criminal activity.12 The politics of 1993-94 created a stalemate in the fulfillment of that reform.
Three problems should be mentioned here: the interrelation between the law and statute; the hierarchy of normative legal acts; the obedience of the state to the law and constitutional order.
I have already mentioned the correlation between the law as imperative of justice and written statutes, which is not a purely theoretical question for Russia. We understood the supremacy of law and constitutional principles as one where the state, all its organs and officials and citizens effectuating the law and the constitutional structure shall act in strict adherence to the Law and Constitution based on it, while the Constitution is the Supreme Law of the Federation.
I believe the Law to be a complex phenomenon, which may be considered as a (1) set of norms regulating public relations; (2) an imperative, which stands above the state and its statutes and defends a fair order of the state which (3) may or may not be put into current legislation. The problem may be solved if we consider that the constitutional fundamentals provide a written form of that exact imperative of justice and serve as a bridge between the law and the statute.
But you cannot remove any of these characteristics by following your personal preference, as was recently done in Russia. The dangerous disjunction between the two became clearly evident during the October 1993 crisis. Indeed, Yeltsin's supporters utilized the difference between these two categories to base a "theoretical" justification for the unconstitutional cancellation of the Basic Law, disbanding Parliament, the regional Soviets and the Constitutional Court.
It appears that the danger of such a voluntarist understanding of what constitutes law is still alive in Russia today. For example, under the current Constitution the only independent power of the State Duma—the lower legislative house—is to declare amnesty (Art. 103-1/f). When the State Duma executed this power in March 1994 and granted amnesty to Yeltsin's political opponents from the 1991 and 1993 events, the Yeltsin administration declared that this perfectly constitutional action by the Duma was "juridical, but not legal". Later, the resolution on amnesty was "allowed"—and not to Yeltsin's credit It was "exchanged" for another decision of the Duma—not to appoint a parliamentary commission to investigate the events of September-October 1993.
The new Constitution does not set the limits and purposes of the state. Although this was stressed in the early draft, which declared that "the state is an official representative of the society and expresses its will within the framework of the Constitution. The state, its organs and officials serve the whole of society and not any part thereof and are responsible to society and the citizens. Thestate is obligated: (1) to protect and guarantee the rights of individuals and citizens; (2) to defend the democratic constitutional system, law and order; (3) to defend the sovereignty, independence and the territorial integrity of the Russian Federation; (4) to develop and implement the policy aimed at the free development of the economic initiative and active social protection."13
Bearing in mind that the Constitution in its final form does not include the chapter on civil society, we may claim that the public control over the state (above all, over the executive branch) is in no way that document's strong point. The same may be said of legal control, which I will consider when ad- dressing the legislative branch and judiciary.
Securing Constitutional Order in Russia
Russia, therefore, needs a special chapter in its Constitution that assembles the necessary mechanisms to secure and protect the constitutional system and legal order. It is interesting that the only Constitution with such a chapter is the Crimean Constitution of 1992, although such a chapter did not prevent a serious constitutional crisis in Crimea in 1994.
One of the key institutions in this chapter should be the Constitutional Court. The role of the Court can be analyzed through the experiences in 1991-93 of the first Constitutional Court of the Russian Federation. Also pertinent to our analysis are those key powers of that court that were extracted from the final text of the 1993 Constitution, extractions that deprived the Constitutional Court of some important preservations of power.
I must stress that the Constitutional Court should be the supreme judicial organ defending the constitutional order. This cannot be secured without the authority to decide whether and how it may act within the political process, and whether or when to act as arbiter, mediator, umpire or some other truly independent judge within that process. Above all, the Court must be truly independent of all participants in that process. When deprived of the right to initiate cases, the Court becomes a passive witness and loses its active role as defender of the legal order. The concept differs from the U.S. and German models, but with all the difficulties of the Russian situation, we need something new to be established in a constitutional judiciary.
The Constitution does not state that the Court must have absolute power in its decisions or represent the source of definitive and final judgment. Not surprisingly, in the "New Russia" of October- November 1993, the Kremlin attempted to revise rulings of the Court both in the Communist Party case of 1992 and in the Yeltsin impeachment decision of September 21, 1993. The Constitutional Court was deprived of the previously proposed power to swear in the President of the Federation upon his taking the oath of office. It was also relieved of the power to judge the ability of high state officials, including the chief executive, to fulfill their constitutional duties. (An important issue if one considers the baleful experience of Russian chief executives from Lenin to Yeltsin.) Thus, the Constitution does not guarantee either the symbolic and ceremonial power to install the Russian chief executive, nor the real power to remove him when both the required legal facts and the necessary political consensus are present The powers, therefore, are much lessened than originally envisioned.
The Constitutional Court must exercise regularly the right to deliver to Parliament its annual assessment of the "health" of constitutional legality in Russia, an assessment that must both be frank and uninhibited. Its first duty is to observe the legal acts system. Today the system of legal acts in Russia has lost its hierarchy; the by-laws of the President actually violate constitutional norms with nearly half of the edicts .The assessment of such dangerous tendencies should originate upon reflection in the Constitutional Court and be vigorously voiced.
The Russian Constitution also lacks provisions on the state of emergency. One must remember that martial law (de jure and de facto) was declared several times in the period 1991-93 during coups and semi-coups. In all cases this was done in severe violation of constitutional provisions. The possibility to violate such provisions does not now exist, since the Constitution leaves a blank space on the subject and a green light for the possible abuse of power by the executive branch. The Constitution does not state which conditions shall be considered exceptional (extraordinary). The procedure of parliamentary approval is unclear (this was used in the Chechen operation). The Constitution does not provide guarantees for the legislative and judicial bodies during a state of emergency nor does it state which right and liberties may be suspended.
Russia as a Democratic and Republican State with a Division of Powers
An analysis of direct democracy and indirect or representative democratic principles shows that these fundamentals are now in danger in Russia. Precisely this record of "democracy" in Russia requires one to enumerate what Russians today expect of their democratic institutions and why they have the right to realize these expectations.
One cannot favor overwhelming direct democracy, because in Russia it was abused for demagogic aims and became a tricky and controversial weapon.
An important natural collective right of society is the right to resist tyranny. Not only is this right found in philosophy from the Russian Middle Ages (M. Grek, F. Karpov, A. Kurbsky, and others), but it is also fixed in various constitutions, including those of New Hampshire, Mexico, Germany, Pakistan, Liberia, Ghana. Recently in Russia the respect for the norm of the right to resist tyranny was totally deformed by the prevailing political circumstances. After the first coup in August 1991, the liberals supported and exercised this norm in Moscow. After the second coup in September-October 1993, those who had defended Parliament in 1991 turned an offensive assault against it. They had changed their mind, modified their "constitutional consciousness" and thus disfigured the natural right to resist tyranny—and finally excluded it from the Constitution.
If direct democracy seems to be a completely discredited concept in Russia today, the case of indirect, representative democracy fares no better.
The principle of "power to the people" and the idea of representative democracy as a check upon autocratic rules nourished generations of intellectuals under the old regime and under communist Russia. Indeed, the Soviets in the regional and local councils can be seen as part of the successive solidarity linking several generations of the social participation throughout Russian history.
It was obvious, however, that the Soviet political system needed reforms that required two steps. During 1988-90 Mikhail Gorbachev took the first step: power was shifted from the Communist Party of the Soviet Union (CPSU) to the Soviets, primarily to the Congress and Supreme Soviet of the USSR and to the Russian Soviet Federated Socialist Republic (RSFSR), as well as to the regional Soviets. (Unfortunately, I had underestimated this step myself, viewing it as a move of authoritarian modernization.)
During 1990-91 the Russian Parliament took the second step when it devolved the executive powers from the all-mighty Soviets to the executive branch. Thus, a "first power" of parliamentary political power was creatively generated. In turn, the first power then creatively generated the balancing "second power" of the President and the regional and local chief executives. The reader should understand that this was a natural and bloodless evolution of two distinct political powers in Russia, an organic Russian political evolution—the first of its kind in Russian history.
A third, perverse step was taken, however, by Yeltsin and the radical liberals: they did not wish to acknowledge the peaceful evolution that had already taken place and proceeded with revolutionism of the worst kind. They demolished the legislative power that not only had created the executive power, but also realized its obligation to control its new political creatures.
The desired division of powers evaporated with representative democracy. This took place when the Supreme Soviet, a necessary successive link between the old Soviet system and the new parliamentary system, was demolished. The system was demolished, because, according to Yeltsin, "it did not satisfy the demands of a modern parliamentary system." Its successor, the State Duma, literally started from zero and has attempted to build a "new Russia," even though it is deprived of any valid continuity of state and law in the new Constitution.
I should add that representative democracy cannot be correlated simply with basic legislative functions. Representative democracy provides public control and genuine participation of the people. Unfortunately, at present the Parliament, like the regional and local councils, is totally deprived of powers of control or political check on the chief executive (president or head of administration in regions), as well as on the government and ministers.
Let’s take one vivid example—the Chechen crisis. Chechnya demonstrated the potential for Russian authoritarianism. The obvious abuse in Chechnya is legal, based both on the acknowledged precedent of 1993 and on the altered constitution. The President is Commander-in-Chief of the Armed Forces (Art 87), appoints and dismisses the defense minister and other top commanders of the armed forces without parliamentary approval (Art. 83-e/ and k/), personally (!) approves the military doctrine of Russia in the form of a by-law edict (Art. 83-h/). Now he orders that no bill on defense contradict his doctrine. One should add that there is no constitutional provision on the state of emergency. Narodavlastie—or representative democracy is powerless. Civilian control over the executive and the "power" services is impossible. Crude force is becoming the usual instrument for solving arguments with opponents. One must conclude that the romantic era of our earnest attempts to fix the miracle of constitutionalism in Russia is over. This clearly undermines any sense of representative democracy among the people.
The enforced alternative in Russia today is a super-presidential autocracy that is thoroughly incompatible with republican representative democracy. One witnesses the restoration of that very administrative system whose evil the reforms of perestroika fought to abolish in 1987-92. Perestroika's romantic efforts (i.e., the reconstruction of the system) are now eclipsed, while the status quo ante has not only been restored, but has received new cynical features in the form of a New Older...
Federalism in Russia
The new division of competencies between the Russian Federation and its constituent members was proposed by the Constitutional Commission in 1990-91, established by the Federation Treaty of 1992, and are reflected in the Constitution of 1993 (Chapter 1, Article 5; Chapter 3). This division is based on several principles:
•The Russian Federation is comprised of equal members (regardless of their ethnic or territorial genesis and composition).
•The constituent republics and regions (krai and oblast') are equal in their relations with federal bodies of state authority.
•The constitutional balance between state integrity and self-determination of the peoples within the Russian Federation.
•The possibility to detail or redistribute the division of jurisdiction and powers on the vertical level by additional treaties.
There is a problem now as to where Russia is moving—toward a Russian Federation or toward a Russian Confederation or Commonwealth. The answers offered by the Constitution still arouse disputes on practice. One must therefore address numerous issues of a federal nature: the means for ensuring the integrity of the Federation, the legal relationship between the federal and regional constitutions, the implementation of federal laws throughout the territory of Russia, and the payment of federal taxes.
The 1993 Constitution made a good first step toward equalizing the legal status of constituent parts of Russia, regardless of its ethnic republics or its administrative regions. The Constitution also rightly subordinates the norms of the Federation Treaty and of bilateral treaties between the Federation and its members to the norms of the Federal Constitution.
Problems, however, still remain. The most basic issue involves the self-identity of the peoples of the Russian Federation as a nation. What unifies today's nation of this "new Russia"? Russia no longer possesses a single state ideology, a single ruling party or official, a single religion or set of recognized and continuing traditions. Russia today suffers from a lack of self-identification. In the early 1990s I had thought that the new Basic Law might help to create a common sense of shared values and aspirations, but the low respect for the new Constitution does not support that view now.
Russia is a multi-ethnic territorial state. "We, the multi-ethnic People of the Russian Federation" reads the Preamble to the Constitution, which was taken from the original draft of the Constitutional Commission. "Multi-ethnic" signifies that all ethnic groups do not automatically receive the constitutional status of a nation upon which they may build their own independent states. The latter would lead to a new outbreak of local tribalism and would violate the important principle that citizens of Russia are guaranteed an equality of rights and freedoms, regardless or race, nationality, language, color, place of residence, religious orientation, etc.
The legal and political perspectives of Russian federalism are based on two factors. First, regions are demanding from Moscow both guarantees of stability and predictable behavior by the federal power. Second, the regions demand more freedom of economic activity, since patently incompetent regional policy in Moscow propels the regions toward increased economic secession. A tempting example for many is the Republic of Tatarstan, which does not pay federal taxes and has moved to one-channel tax budget relations with federal authorities by paying them a fixed sum.
The regions' growing political significance can be illustrated by the fact that following the confrontation between the President and the Supreme Soviet, the regional powers were one of the last elements of stability; during the revolt the majority of the regions demanded a restoration of the separation of powers. Although the unprecedented attempts by the regions to restrict the central power were illuminating and uplifting, these attempts ultimately and unfortunately failed. Chaotic federalism heavily undermines the governance of Russia today. Even though the political contacts between regions are slowly recovering, true federalism in Russia is in its infancy.
After the April 1993 elections in the regions, new governors were elected and only one or two regions throughout the entire Russian Federation found themselves in problematic conflicts between the "first" and "second" branches of power. In the regions, the so-called "inevitability" of conflict between branches of power was highly artificial; witness the simultaneous popular election of Soviets and governors in regions that experienced no "tug-of-war" comparable to the one enacted by the chief executive at the federal level. But Yeltsin cancelled the regional Soviets and created a lasting problem of unbalanced decision-making. The 1993 Constitution does not provide even the basic principles of power structure for the constituent members of the Federation. After October 1993 and the forced removal of the local councils, the internal balance of power among the constituent members was broken and overtaken by the voluntarism of the executive power. Moreover, after the Soviets were destroyed no system of legitimate political power throughout the Federation remained. Many new councils (e.g., the Moscow City Duma) represent the servile and strictly controlled prolongation of the executive (e.g., the Mayor of Moscow and the city administration).
Bilateral treaties between Russia and some internal republics present another serious problem. According to the Constitution, "the jurisdiction and powers between the bodies of state authority of the Russian Federation shall be delineated by this Constitution, the Federation Treaty, and other treaties on the delineation of jurisdiction and powers" (Art. 11 (3)). These other treaties, on the one hand, may help the Federation become more flexible or asymmetric. On the other hand, jealous neighbors of these "asymmetric" members are dissatisfied with the amount of powers and demand more for themselves, thus provoking either an undesirable devolution of the federation, or on the contrary, its re-centralization. The problem of "inner treaties" remains open, but such treaties (e.g., those with Tatars tan and Bashkortostan) still represent a lesser evil than open war between the federal authority and the constituent republic as is the case in Chechnya.
The Chechen Rebellion as a Mirror of Russian State Order
The most crucial part of the Chechen crisis seems to be over. While the West has often described the crisis in black-and-white terms, the reality of the situation is much more complicated and deserves more profound analysis and scrutiny.
De jure the operation was totally correct under the current Constitution and Yeltsin's by-law military doctrine. The operation in Chechnya was con- ducted without serious consultation with legislators—the Constitution does not spell out clear provisions regarding the Parliament's role in conducting domestic policy or its behavior in a state of emergency. Consultations with the Duma took place, but they were merely a voluntary act on Yeltsin's part—the deputies' call fora cease-fire and a political solution had no legal force in light of the personal stubbornness of the fighting commanders on both sides.
De facto the operation was clumsy and outrageous. Chechnya is a part of a different civilization within Russia and dealing with it requires knowledge of the art of politics, which the Kremlin has proved it does not possess. Both sides showed themselves to be poor strategists and bad tacticians.
I must admit that the use of force in Chechnya was practically inevitable, in part caused by the federal authority's behavior. If federal executives ignore constitutional norms, some regions will take that example and proceed in violation of those norms. But there is scarcely room for illusions about the origins of the Chechen rebellion. Far from a romantic fight for independence, General Dudaev was created with the export of revolution by Yeltsin after the August 1991 "victory" of the Russian democrats over the USSR leadership and the subsequent dismantling of the Soviet Union.
Dudaev is a miniature copy of Yeltsin. Russia suicidally fought with the USSR for independence, while the Chechen leader declared independence from Moscow despite the fact that all of his republic's economic interests lie within Russia. Like Yeltsin, Dudaev smashed the Constitution and the Parliament in a coup and established a personal despotism based on corruption, criminality, and an Asiatic rule of blind loyalty. Although the Russian Congress declared the regime of Grozny to be "non- constitutional and its decisions to have no legal force," in fall 1991 it denounced Yeltsin's first decree on martial law in Chechnya. The republic was given every opportunity to restore common sense and to use its freedom for the sake of the people. Russia did not organize a blockade; on the contrary, it supplied federal money until the summer of 1993.
Dudaev's regime not only completely destroyed the republic's economy, but the jobless people were widely involved in all kinds of illegal operations. Chechnya was transformed into a source of a criminal threat for all of Russia. Dudaev, for example, called the Muslims of Moscow to turn the Russian capital into a disaster zone. It is difficult to imagine that any Western constitutional democracy would tolerate not only a constituent state's claims for a unilateral declaration of independence, but also its own hostile army, active tanks and missile launchers, the constant robbery of trains passing through its territory, the illegal trade of weapons and drugs, and the export of terrorists and gangs to other regions. No normal state could bear such a situation.
The border between self-sacrifice and tolerance came too close. Russia needed a stronger position to deal with separatists and a precedent for using "administrative and forceful measures." Tatarstan avoided it after the decision of the Constitutional Court on its secessionist referendum of 1992. Chechnya could not avoid it—Dudaev did not want peaceful coexistence and cooperation. The signals from General Dudaev appeared to be an ultimatum not a proposal.
For the first time in the recent history of the USSR and the Russian Federation the use of force was extensive and, according to the Kremlin's evaluation, rather successful. This may be a turning point for Russian federalism, which from now on will be based on the voluntary Federation Treaty of 1992, the Constitution of 1993, and the precedent of the forceful restoration of constitutional legality in a region of the Federation's territory.
IV. THE RUSSIAN ROAD TO CONSTITUTIONAL ORDER: SOME PREDICTIONS
The future of Russian constitutional order will certainly depend on the evolving legal environment and political culture within which the Constitution asserts its authority. One must agree with Robert Sharlet that although a constitution represents a political construction of reality, its "essential cultural milieu is the organic product of the collective mind of the society, a web of beliefs, sentiments and attitudes that, if nurtured and cultivated over time by proper practices and behavior, will grow increasingly supportive of a constitutionalist future."14
Authoritarianism in Law
Russia is in search of legal mechanisms to ensure constitutional stability. The present Russian Constitution is the most rigid. But this is not a path toward stability, which is of course impossible without instruments for peaceful constitutional change. While stability lies on the surface, there still remains the growing possibility of a powerful outburst in fierce reaction to the current regime's conduct.
The basic problem in Russia is the illegitimacy of the power after the tragedy of 1993:
•The ruling minority or "democratic forces" all in all won only 17% of the parties' list votes in the parliamentary elections of December 12,1993.
•No serious opposition party signed Yeltsin's Treaty of Social Accord (April 1994).
•The government was supported by only 54 votes against 284 in the vote of no-confidence by the State Duma (October 27,1994).
•The survey conducted by Public Opinion on January 29, 1995, shows that Yeltsin has the complete trust of only 8% and partial trust of another 13%. But 72% of those questioned do not trust a person who possesses enormous constitutional authority and possibilities.
The tendency toward disruption between the nation and authority could lead to another civil calamity.
The Chechen rebellion and the operations of the Russian Army in the North Caucasus in December 1994-January 1995 may be considered a turning point in the Kremlin's political orientation. Politically they provide a key to the general change in Russian politics and some of the long-term effects. In general, one observes the Kremlin's shift to the "new right"—a shift which I find to be an organic outgrowth of developments of the past few years.
The Chechen operation—as any war—was a "locomotive of history" that hastened the regrouping of political forces in Russia as it moves toward the 1995 parliamentary elections and the 1996 presidential elections. The move into Chechnya ended a three-year honeymoon shared by radical liberals and Yeltsin.
Opposition to Yeltsin was crushed in 1993 due to the unwillingness of the President and his elite to accede any public control over privatization, finance, domestic and foreign policy. In 1993 I was forced out of his entourage for attempting to insist that no state mechanism can operate effectively without brakes and for promoting a "progressive and socially-oriented conservatism." The Kremlin may now try to play this role itself in order to avoid repeating some of the gloomy achievements of recent "radical reform." This would not be bad for Russia. Unfortunately, nobody can predict how far it will go. Today the Kremlin assumes all the rhetoric of the traditionalist opposition. As the undeclared leader of the "new right" and head of the Bonapartist party of power, it is leading the undeclared bloc of power-hungry, obedient and cynical nomenklatura (both old and new), the Communists who are silently returning, and the populist party of Zhirinovsky—the largest party in today's State Duma and in the electorate.
Let’s consider the consequences. First, Russia almost inevitably faces vast military reform—poor personnel training and conduct arms/ and tactics will be seriously reviewed. In the late 1980s the Soviet Army appeared to be the hesitant victim of liberal opinion and could not accomplish its tasks/ clearly signalling the weakness of the state itself and the impending death of its institutions. This may reshape the concept of the federal budget for 1996. If the West does not provide the promised loan package, the exhausted transition to a market economy may be coopted by a strong regulatory role for the state. The crisis in the Army merely reflected the general crisis of the nation's consciousness—a spiritlessness and collapse of shared values and ideals. This may bring about new changes in the mass media, primarily state television and radio, as well as in the sphere of education. Unrestricted political freedom may also soon come to an end.
I am quite certain there will be major personnel changes in the President's entourage, Yeltsin's Administration and the Council of Security and Government Yeltsin is looking for reliable partners in his new maneuver. He will later chose among them in the Old Style who is to be his successor and who will ensure the transition of power.
In my opinion, the West is partly responsible for the change in Russia. I still remember my Western colleagues—constitutionalists and parliamentarians—joyfully greeting the demolition of legal institutions in 1993. Russian authoritarianism was re-established with the participation of domestic radicals—and the West applauded. I would caution against hasty acts of condemnation. Nobody can stop the pendulum. But for most Russians even cold peace is better than the Cold War. But the latter may become a reality.
When leaders of the U.S. Republican Party declare (in the midst of Russian democracy's highly pro-Western policies) in their Contract with America that "our defense forces have been cut so deeply that we risk to return to the hollow military of the 1970s" and that "we will stop undermining our military and give Americans security with peace of mind" and address this problem by "urging... to proceed with full NATO partnership discussions with nations that are striving to embrace democracy, enact free market economic reforms, and place their armies under civilian control,"15 they do not mention that such desires directly confront Russia's national interests and will inevitably lead to a freezing of the remnants of Russian constitutionalism. The often humiliating "Big Brother" stance assumed by the West in its relations with Russia and the aggressive calls by the GOP may provoke a more egoistic policy in Moscow based on national interests.
An Optimistic Scenario: Constitutional Assembly
The optimistic scenario foresees a positive move towards constitutional order as a common goal and national agreement on the means to achieve this order.
Recall that with the 1993 Constitution Russia inherited its seventh constitution after those of 1905-7, 1918, 1924, 1936, 1978, and 1990-92. True constitutional stability based on legitimate rule of law will only come about if based on a new constitution, the eighth one. The first step towards this national agreement is to implement a Constitutional Assembly that can sensibly revise the current, defective Constitution. This would be the only legal recourse to accomplish this task if not immediately, at least within a reasonable span of time. Second, a qualified parliamentary decision to review Chapters 1,2, or 9 (Basic Principles, Human Rights, Mode of Changing the Constitution) of the current Constitution is required, following a vote of three-fifths of the Federal Assembly, as provided by the Constitution. Such a high threshold majority of votes for this decision reflects the need for maximal consensus on both sides to convene a Constitutional Assembly. Third, the election of this body (403 members) by the citizens in a direct vote in constituencies of members of the Russian Federation by three-fifths majority vote. Only in this case can the Constitutional Assembly be convened.16 The Constitutional Assembly, as provided for in Article 135 of the current Constitution, has great potential, since it has the right to elaborate and adopt the new Constitution independently—without confirmation from any other branch of power. This body may provide the long-awaited legal reform of creating and fixing a national consensus. With this consensus Russia will establish new, fairer and suitable rules of relations for the mechanisms of state power and between that power and civil society. The public debate is just beginning. Russia will have the opportunity to strengthen legitimate constitutionalism in Russia as an alternative to the growth of unpopular authoritarianism in law.
A Modified Constitution and Form of Government
The final step is to prepare a new draft Constitution for which much of the work was already done by the Constitutional Commission in 1990-93, work highly regarded by Russian and international experts.
I submit that this eighth Constitution will be adopted not by overthrowing the 1993 Constitution, but by adding new chapters and articles to the latter, and by replacing some of the most unacceptable ones. There would be new or revised chapters on:
•New form of government.
•Finance, fiscal matters, and the budget process.
•Institutions of and guarantees for civil society.
•Mechanisms and institutions of reintegration of Russia and the republics of the CIS. •Guarantees of securing the constitutional order in Russia; a new Constitutional Court, civilian and parliamentary control over the military and security forces, provisions on the state of emergency, a reformed and strong procuracy, etc.
One particularly crucial task would be to modify the form of government with its imperfect checks and balances. I foresee a Russian republic that is "three- fourths presidential" which operates according to provisions that ensure checks and balances for Parliament the President, and the Government. These provisions include:
•A strong but responsible presidency.
•Mechanisms of control over the President and his decrees.
•Nomination by Parliament of a cabinet of ministers to form the government, the powers of which are set forth only in federal law.
•Creation of a State Council under the leadership of the head of state as a collective decision-making body for the most important decisions and also as an additional forum for communication between the divided branches of power. This would operate according to a special federal constitutional law and include, among others, the President, Prime Minister, the key ministries (nominated with parliamentary approval), speakers of both houses of Parliament, Chairman of the Constitutional Court. (One must admit that it may be useful to draw on Russia's historical experience under the old regime and of the Soviet Politburo.)
•Provision for the impeachment of the President as a real power of the legislature, which is now denied under the 1993 Constitution, making impeachment practically im- possible.
•The collective and personal responsibility of government ministers.
Russia and the Reintegration of the Union
Although this final part of my essay may find numerous opponents, I am taking the risk of providing some observations of a long-term nature. Many problems, including those of the Russian nation's search for a self-identity, Russian federalism and Russian state sovereignty, human rights, etc., may find their solution in the process of a peaceful and constitutionally-based reintegration of today's Russian Federation and some republics of the CIS. Many of the newly independent states are far from democracy; in many cases Erinyes-like evils replaced the so-called Communist Empire of Evil. Nationalism, based on an exaggerated concept of national liberation, represents the main evil. The lack of common legal space is replaced by collaborative cooperation between criminal and mafia circles. Russian-speaking or pro-unionist communities in the CIS often suffer from extensive violations of their human rights. Unfortunately, this has been supported by a hypocritical Western policy toward the real tribal segregation and nationalism in the former Soviet Union.
The reintegration of Russia and the republics could be accomplished in three ways. The author insists upon a model of "slow, organic reintegration" which will bring the divided and formless CIS first to an effective economic union, based on mutual interests and then inevitably to an asymmetrical political union with common institutions/ based on the Constitution or multilateral union treaty.
All the conditions and premises exist for the reconstruction of an economic common market which functioned integratively until very recently. Reconstructing this economic integration may provide the best blueprint for the political structure of the union itself. A treaty on common currency mooted by Russia and Belarus is one example of such an initiative.
On September 24, 1993 members of the CIS signed the Treaty on Economic Union, which outlined the step-by-step creation of a free trade area, a customs union, common market in goods, labor and capital, and a currency union. The Treaty on Economic Union was ratified by the Russian Parliament in October 1994. Today eleven of the former Soviet republics are full members of the Economic Union, while Ukraine is an associate member. This treaty remains an intention, rather than a document. Nevertheless, on January 6,1995, the prime ministers of Belarus and the Russian Federation— pioneers of reintegration—signed a package of important bilateral treaties on free trade, customs union, etc.
Practice has shown that in order to create an Economic Union, its members must create common legislation and common institutions, which would provide the necessary environment for integration. This is nearly impossible now, since the major trend is further separation of the new states' economies from the common economic practice and heritage bequeathed by the USSR.
The new Russian Constitution may need to embody these new institutions, as well as regulations on dual citizenship and legal documents for citizens of the union. Article 79 of the 1993 Constitution allows participation in interstate associations, but further reintegration may lead to the amendment of the present Constitution.
These amendments should entail the following provisions:
•The constitutional status of the Russian Federation as a member of a Union of Republics shall become one of the fundamental principles of the constitutional system of Russia and shall not be changed except in accordance with the special procedure (referendum).
•The Constitution should provide the ground for basic common institutions, for example, Union Legislative Assembly, Council of Heads of State, Supreme Court on Human Rights, Combined Armed Forces and Border Guards, Union Customs Service, Council on Citizenship, etc.
•The Russian Constitution should dearly define the procedure for inter-republican treaties and the role of all branches of federal power in that process.
In the State Duma the right-wing opposition is demanding that Russia be divided into administrative-territorial regions that possess no sovereignty of their own. This pushes the country toward a trap—a strictly centralized and unitary state is unlikely to achieve any success in the field of reintegration.
On the other hand, a model of reintegrative, constitutionally-based sovereignties can solve the problems of rebellions inside Russia (e.g., Chechnya and Tatarstan), as well as permit Russia to agree to the demands for reintegration coming from, for example, Belarus, Armenia, Nagorno-Karabakh, and Crimea.
Another possible model could be called "Russia as an open federation/' Some members of the present Russian Federation may formally quit, but more would join the federation. The Dniestr Republic of Moldova, Abkhazia, Southern Ossetia, Nagorno-Karabakh, Northern Kazakhstan, and Crimea have already expressed their desire to join the Russian Federation. Russia must be prepared to avoid conflicts with the neighboring republics over territorial integrity, which in the longer perspective point to the faults of the second model. But we should stress that since neither international law nor recognized international organizations have yet to provide the answer to the perpetual contradiction between the right and the will of a nation to reach its self-determination. And since they do not adequately resolve the equal rights of minorities within a seceding state, a constitutionally-based system of integrated and integrative sovereignties may provide an answer to the instability of the borders as presently recognized.
The reintegration of regions on a constitutional basis may be founded on the common civilization that is shared by most of Russia, Belarus, Ukraine, Moldova, Kazakhstan, and to some extent, Armenia and Georgia. These regions belong to the multi- ethnic common civilization, which the Brezhnev Constitution of 1977-78 called "the new historical community—the Soviet people (sovetskij narod)." Many critiques of Soviet Communism found that characterization to be artificial, but today we must admit that they were wrong: a community with shared traditions, mentality and institutions did exist and the present growing nostalgia only proves that point. The overwhelming majority of the population shares a common mentality, habits, history, culture, religion, language, community traditions. Samuel P. Huntington is correct and instructive when he states that "a civilizational paradigm provides, better than any alternative, a useful starting point for understanding and coping with the changes going on in the world."18 Thus, a proposed cultural paradigmseems to be a constructive instrument to comprehend the geopolitical and constitutional developments in Russia and the CIS. All these factors may demand the reestablishment of common institutions/ including legal ones.
During the years 1989-94 Russia traveled a long and troubled path from declining autocracy to the miracle of constitutionalism and back to a new powerful and cynical autocracy. The new Russian Constitution of December 12, 1993, with all its promise has yet to create a just constitutional order or to provide constitutional coherence. Much of this is the result of the presidential coup of Fall 1993. The Russian people's desire for a just constitutional order must once again be considered as a strong counterpoise to the authoritarian state order.
The forthcoming Russian Constitution should not only create the framework and legal mechanism for reintegration of the common civilizational space mentioned above but it must also play a crucial role in fulfilling several other functions:19
•Play a system-creating role by being the major instrument of design for constitutional order, its values, institutions and norms.
•Create a balance between the main subsystems of state and society.
•Be a mechanism of political consensus and a guarantee for its maintenance.
•Serve as a fundamental law, the summit of legal normative acts, and showing their strict hierarchy.
•Provide a plan for legislative activities.
•Guide the reintegrational processes within the CIS.
•Outline the key priorities for national state interests.
•Organize the efficient working of the federal power and the cooperation of its branches.
•Provide judicial guarantees for the declared catalogue of human rights.
•Stabilize the social-economic partnership in labor and other relationships in the economic sphere.
•Provide the basic orientation for the education and upbringing of the new and future generations.
•Help to recreate the sense of a common nation.
•Restore the legitimacy of the legal and power space in Russia.
This is hard work, but comprehension of its importance will signal new perspectives for Russian constitutionalism.
Dr. Oleg G. Rumyantsev is President of the Russian Foundation for Constitutional Reform. He works as Constitutional Law Consultant to the Committee on Legislation and Judicial Reform, the State Duma of the Russian Federal Assembly. In 1990-93 he became known as the principal draftsman of the draft Constitution of Russia, member of the Presidium of the Supreme Soviet Soviet of the RSFSR and First Secretary of the Constitutional Commission (deputy to the Commission's Chairmen, Boris Yeltsin and Ruslan Khasbulatov).
1. P. Novgorodtsev, Ob obshchestvennom ideale (Moscow: Press, 1991), pp. 55, 116, 129.
2. For more about this "triangle" see: O. G. Rumiantsev, Osnovy konstitutsionnogo stroia Rossii (Moscow: Jurist, 1994), pp. 34-41.
3. The Constitutional Commission was created on June 20, 1990, by a special resolution (written by O. Rumyantsev) of the First Congress of Peoples' Deputies of RSFSR to prepare a new draft of the Russian Constitution. The Commission was co-chaired by Boris Yeltsin and Ruslan Khasbulatov until February 1993. Rumyantsev was first nominated by Yeltsin to be a Secretary of the Commission; after August 1991 the Commission elected Rumyantsev First Secretary and Presidium Member of the Supreme Soviet of the Russian Federation.
4. See Constitution of the Russian Federation. With Commentary and Interpretation by American and Russian Scholars (Moscow: Brunswick & Novosti, 1993), p. 20.
5. Robert Sharlet, "The New Russian Constitution and Its Political Impact," Problems of Post-Communism (January/February 1995), p. 4.
6. See Zakliuchenie Konstitutsionnogo Suda RF, "Ob Ukaze Prezidenta RF ot 21 sentiabria 1993 N1400 'O poetapnoi konstitutsionnoi reforme v Rossiiskoi Federatsii," in Konstitutsionnyi Vestnik, journal of the Russian foundation for Constitutional Reform, March-April 1994, p. 122.
7. See V. Lafitskii, O. Rumiantsev, "Proekt Zakona RF 'O poetapnoi konstitutsionnoi reforme' i kommentarii k nemu, Konstitutsionnyi Vestnik, March-April 1994, pp. 136-49.
8. Izvestiia, May 6,1994; Sovetskaia Rossiia, May 1,1994.
9. Zaiavlenia liderov obshchestvennykh ob'edinenii Rossii "O nelegitimnosti Konstitutsii RF, predstavlennoi na referendum 12.12.1993 B. Eltsinym," Pravda, January 19, 1994.
10. On the awakening civil society, see Oleg G. Rumiantsev, "From Confrontation to Social Contract," East European Politics and Societies, vol. 5, no. 1 (Winter 1991), pp. 113-26; Rumiantsev, "O samodeiatel'nom dvizhenii obshchestvennykh initsiativ. Neformal'nye ob'edineniia i ikh rol’ v perestroike obshchestvennoi zhizni v SSR" (Moscow: IEMSS AN SSSR, 1988); Rumiantsev, "Stanovlenie grazhdanskogo obshchestva v Vostochnoi Evrope (Politicheskie neformaly v stranakh gosudarstvennogo sotsializma," Sovremennyi sotsializm i problemy perestroiki (Moscow: IEMSS AN SSSR, 1989).
11. Some key ideas of that reform may be found in O. Rumiantsev, "The New Russian Constitution," Journal of Democracy, vol. 2, no. 2 (Spring 1991), pp.35-46.
12. For more on judicial reform, see Peter H. Solomon, "The Limits of Legal Order in Post-Soviet Russia," Economic Crime and Market Reform in the Former Soviet States (Westview Press, 1995).
13. See "Proekt Konstitutsii Rossiiskoi Federatsii," Argumenty i Fakty, no. 47.1990.
14. Robert Sharlet "The New Russian Constitution and Its Political Impact," Problems of Post-Communism (January /February 1995), p. 6.
15. Contract with America. The Bold Plan by Rep. Newt Gingrich, Rep. Dick Armey, and the House Republicans to Change the Nation (Times Books, 1994), pp. 91-93.
16. For more on the Constitutional Assembly, see: O.G. Rumiantsev, "Konstitutsionnoe Sobranie—Shag k spravedlivosti?" Nezavisimaia Gazeta, December 9,1994, p. 2; "Proekt federal'nogo konstitutsionnogo zakona," O konstitutsionnom sobranii (Komitet GosDumy po zakonodatel'stvu, 1994).
17. Positive evaluations of the 1990-92 Constitutional Commission's draft of the Constitution of the Russian Federation was given by many prominent U.S. lawyers in their expert work done at the request of the U.S. Institute of Peace (1991) and by lawyers working under the auspices of the American Bar Association Central East European Law Initiative Program (1992-93). See, for example, Laurence J. Auerbach, "Decentralization in Russia: The Role of Our Section," Urban, State and Local Law Newsletter, vol. 16, no. 3 (Spring 1993).
18. Samuel P. Huntington, "The Clash of Civilizations," Foreign Affairs, vol. 72 (Summer 1993, p. 22.
19. On the functions of the Constitution, see: O. Rumiantsev, "Funktsii sovremennoi Konstitutsii v segodniashnei i zavtrashnei Rossii," Konstitutsionnyi Vestnik (March-April, 1994), pp. 20-32.