Earlier today, Blair Ruble raised the issue of why a conference on the Russian constitution is being held in Washington. I have two answers to this question. First, I think it is fortunate that this event is happening at a time when we are pushing the “reset” button in Russian-American relations. There are many areas in which we have common interests, including not only the environment, Kyoto, the war on terrorism, and other important issues. It seems to me that constitutionalism is an area in which Russia and the U.S. have definitely been moving closer together in the last 20 years.
For many years, at least 15 years, we have been silent in our relationship on the topic of constitutionalism. Now it is time to begin talking about these issues again, because interesting things are happening not only in Russia, but in the United States as well. In my opinion, you also have problems here involving the excessive concentration of power in the executive branch. Americans are saying this, and I will talk about it too, so that we have a balanced discussion. When Russians travel abroad to conferences, they usually feel a moral obligation not to denigrate our own country or our own Constitution. This really is a moral obligation, but this is a somewhat different situation. And this is the second reason why we are holding this conference: 15 years after its adoption, the debate on the status of the Constitution has begun in Russia.
President Medvedev began this discussion in his message to the Federal Assembly on November 5, 2008. With his blessing, we have kept the discussion going. President Medvedev probably thought the discussion ended with the adoption of the amendments to the Constitution that he proposed, but we feel differently. We believe that this is the time when the constitutional discussion must continue. Further, since it is best for this discussion to happen in an international forum, it is especially fortunate that we are having this conference, where Russians and Americans can discuss our common issues.
Most of the Russian participants in this conference also participated in the drafting of the Russian Constitution. Our small group includes a high concentration of these “founding fathers,” and I believe this gives us a certain moral right to consider how the Constitution we gave birth to in the early 1990s is doing.
I am very grateful to Mikhail Gorbachev, who said quite correctly that all of this began with perestroika. There is no doubt that Mikhail Gorbachev was the forerunner of the political reform that occurred. Perhaps we were a bit too critical back then of the “authoritarian modernization.” I am looking at Volkov and Sheinis, my colleagues on the constitutional commission.
Still, to get back to the topic of Russian-American cooperation, I remember that we had a great many contacts 15 to 18 years ago. In August 1990, at the beginning of both my managerial and creative effort in the Constitutional Commission Working Group, I spent a month in the United States, at the invitation of the U.S. Government, meeting with senators, congressmen, governors, mayors, scholars, professors, and teachers. I met with a wide range of people, and it was extremely useful to me. For example, I had the opportunity to hear about how these fundamental principles work in real life from Andrzej Rapaczynski of Columbia University, to whom George Soros introduced me. Here is a warning he gave me: “I urge you not to create in Russia a presidential system based on the American model,” said Mr. Rapaczynski. “They love it in the United States, but it has not been successfully implemented anywhere else in the world. It very often leads to dictatorship.” So that was one piece of interesting and largely prophetic advice we received from Andrzej Rapaczynski. We heard many different opinions during these discussions.
In 1992, I met with my old friend James Billington in the U.S. Library of Congress, and Dr. Billington made one of his offices at the Library of Congress available to me, so for a whole week I worked on the draft of the Constitution in an office right next to his. In January 1993, during the inauguration of President Clinton, I was here in the Senate, along with Vladimir Lafitskiy, one of our other speakers here, for a conference on Russian constitutionalism. We had good debates. As the Constitutional Commission worked on the draft, we received a large amount of very detailed material from our American colleagues. There were proposals and opinions on the constitutional provisions governing the budget process, federalism, and the vertical distribution of powers. It was all extremely interesting. Unfortunately, the recommendations on budgeting authority did not make it into the final Constitution, although they were in the draft proposed by the Constitutional Commission. We see the result today in the total power of the executive branch over the management of public resources.
When I analyze the disputes we had in the early 1990s over the draft Constitution and the problems we have today in putting the constitutional principles into practice, I realize more and more that the key factor in these conflicts and the weak link that, if we had grasped it, could have resolved all of these conflicts, is the issue of popular sovereignty.
The preamble and Articles 1 and 4 of the Constitution mention state sovereignty, Article 2 mentions individual sovereignty and the supremacy of human rights and liberties, and Article 3 mentions popular sovereignty. But it seems to me that the fictitious character of, or rather the transformation of popular sovereignty into a theoretical and practical fiction, underlies certain problems that Russia has faced in trying to build the type of constitutional regime we all dreamed of.
In essence, there were two ways forward. One way was labeled “romantic,” and those of us here who believed in it were called “romantics” regardless of our age. It was the concept of sovereignty that was borrowed from the 18th century, when popular sovereignty was the alternative to the sovereignty of the sovereign, i.e. the king. It was also believed that it echoed the socialist approach, and that the socialist concept of “people’s power” was inconsistent with the separation of powers and so forth. The second way was to conceive of the Constitution as a pragmatic weapon of crisis management. The argument went like this: Boris Yeltsin is a talented manager and he can bring Russia out of this crisis. So let us give up a few of our ideals concerning popular sovereignty, people power, and parliamentary oversight, and this crisis manager will make everything better.
In my opinion, this was the moment when genuine constitutionalism was replaced with what I would call a cynical attitude toward the Constitution and toward the basic principles of the constitutional regime, which are still expressed in the text of the Constitution. So our Constitution is now becoming more and more of a manifesto, an expression of the society’s ideals. When the constitutional regime is merely an ideal, the Constitution is only a plan for the future. This is the unfortunate turn we have taken. Yevgeniy Volkov will speak here; he was one of the first to argue that the provisions of the Constitution must have direct application. From the very beginning, we argued in the Constitutional Commission that the Constitution must be a document that is directly applied in reality, not merely a plan for our shining path toward the ideal.
Yet, those who changed the Constitution turned it into what it is today. For example Sergey Shakhrai, my old colleague and, traditionally, my opponent going back to our days in parliament, says that we (surprise!) have a self-evolving Constitution. It is a document that evolves by itself. In other words, in the past the president had a disproportionately powerful role, but now little remains of the strong presidency. They see this as a positive sign. That is what a self-evolving Constitution is in their mind. I see this, however, as extremely dangerous. I strongly opposed the disproportionate role of the President in the Constitution, but until recently at least you could say there was one institution that was functioning as it was described in the Constitution.
Time passed, and the strong political leader who had served two terms as president became prime minister. Suddenly the independent role of the government is vastly enhanced in the constitutional structure, and the presidency is relegated to a secondary role. This is my assessment. But they say that, supposedly, this was made possible by the mixed form of government created by the Constitution.
Well, even though I disagreed with the exaggerated role of the presidency, I was still happy to let the other side have this one victory. Now it turns out that even this one institution does not function properly. This is a problem that we can talk about and criticize, but ultimately we have to figure out what to do about it. In my opinion, we must pay very serious attention to the principle of popular sovereignty and resist attempts to bring about its devolution.
Mr. Gorbachev said it very well: perhaps this conference will generate some solutions. I would also like very much to believe in what Aleksey Avtonomov said: “The scholar’s task is to identify the problem.” Yes, but the field we are working in is different. It is closely linked to political reality. Why shouldn’t we offer some solutions or a plan of action for the future? This could be one of the real results of this conference.
Incidentally, we want to publish the results of the conference in our revived Constitutional Bulletin. My colleagues from the early 1990s remember that this was a samizdat [self-published] journal in the parliament. The Constitutional Commission published it as an informal bulletin in the spirit of samizdat journalism. It was really great and very interesting. Boris Yeltsin signed an order, and we published the journal on that very shaky legal basis. Now, after 15 years, we have revived it. In December we published international research on issues of implementing the constitution, and some of the people who took part in that research—Peter Solomon, Will Pomeranz, and some others—are here today. We will definitely publish the proceedings of this conference in Russian, and I hope the Kennan Institute will publish an Occasional Paper on the conference.
The question arises: do the people really want this popular sovereignty? Indeed, our work was spirited, but we did not take into account the political culture and the state of mind of our society at the time. We would not in our worst nightmare have imagined, when we created what became the legal foundation for the theory and practice of the great property grab, that the transition to a market economy and democracy would go the way it did. And yet, behind our backs and behind the backs of the democrats who were drafting the constitution, this great property grab occurred.
I am not even sure if this term translates into English; I hope the translators will come up with something. In any case, ever since, for the next 15 years, first in the hands of Yeltsin, then Putin, and perhaps Medvedev—although I hope he might be different—the Constitution has served one legal and political function: to guarantee the results of privatization. This is how the Constitution was finally drafted in December 1993, to ensure that the results of privatization would be inviolable, and for the last 15 years it has served and continues to serve as a guarantor of the inviolability of the highly dubious process of privatization.
Responsible government is being destroyed both in Russia and, in my view, to a certain extent in the United States as well. Conducting parliamentary investigations was very new in Russia when we had committees investigating the events of September and October 1993. There were two parliamentary commissions, and the results of their investigations turned out to be very inconvenient. Also, there was the Govorukhin Commission investigating the events in Chechnya, which was also very inconvenient. So what happened after this? In 2005, they enacted a new law on parliamentary investigations, which virtually eviscerated parliament’s investigative powers. One house of parliament can refuse to recognize an investigative committee formed by the other house and can decline to approve the results of the investigation.
The parliament has an Audit Committee, which exercises parliamentary oversight of government finance and spending, but it has now essentially delegated the appointment of the chairman, members, and auditors of this committee to the executive branch. The most recent example was the amendments to the budget code, when the parliament relinquished its oversight authority over expenditures from the reserve fund. This happened, to be sure, during a financial and economic crisis. In other words, in a financial and economic crisis, popular sovereignty is for all practical purposes inoperative. It appears that first we had to conduct privatization in a crisis, and now we have to bring the country out of a financial and economic crisis again. The result of this was amendment No. 1, proposed by Medvedev, to increase the length of the president’s term.
Yesterday we visited the Newseum, the enormous museum commemorating the First Amendment. We were amazed, and here is what I thought about the first amendment to the U.S. Constitution: the text of the U.S. Constitution says nothing about human rights and liberties. The purpose of the Constitution was to structure the government. However, later they decided that they needed to balance this situation, so they adopted amendments on freedoms. Now, our first amendment allowed the president to serve two six-year terms; it is an amendment creating a 12-year presidency. I do not know what kind of museum you could build commemorating an amendment, which creates a 12-year presidency.
This sharp distinction between our two systems is the origin of the political and legal culture that self-replicates endlessly in our country. It is not a political and legal culture of participation and civic action. My fellow Russians here remember , who wrote in his immortal novel , “My tragedy lies in the fact that I expanded my zone of privacy beyond all limit.” This is our collective tragedy today: We are ceasing to be a society and becoming merely a biological community. Our zone of privacy has expanded so far that we have no sense of community beyond consumption.
There are many possible conclusions to be made. Perhaps we need to find new forms of oversight—who will guard the guardians? There is a new form of oversight that does not exist in the traditional understanding of constitutionalism. It is possible that expert councils could become a prototype of this form. I am pleased that on February 10, President Medvedev appointed new members to the council to support the development of civil society, and a significant number of the members are dissidents, i.e. people with a dissident mentality. Perhaps this council will serve as a new institution of oversight. However, we must not forget the traditional monitoring institutions, which are unfortunately quite underdeveloped.
I was going to criticize the United States here a little, but I am out of time. I was here on January 20th, the day of the inauguration, and I was amazed at the heightened civic spirit I saw. Still, the questions I asked my American colleagues remained unanswered. I asked, how could the president of the United States, and I am not talking about President Obama here, refuse to let presidential advisers appear before a congressional investigative committee, and no one cared? How could the president of the United States commence military operations without the consent of two-thirds of the Senate? How did the president of the United States sign a status of forces agreement, but this international agreement was not ratified? I could cite many more examples of violations of the Geneva Conventions, torture, and so forth, which were left to the discretion of the U.S. president.
Does this indicate that this is a universal problem—this self-limitation of popular representatives? Is the endless expansion of executive power a universal problem? I hope our American colleagues will tell us what they think can be done to revive and rehabilitate the principle of popular sovereignty.
Oleg RUMYANTSEV (Volkov introduction)
Mikhail Gorbachev’s speech today was a little bit critical that we, the members of the constitutional commission, do not talk about perestroika as the start of the whole process of constitutional reforms. It is not very close to truth, to be honest, because in 1988, together with the several colleagues of mine like Gleb Pavlovsky, dissident at that time and today a prominent political technologist, we set up a club called Perestroika. Mr. Chubais together with his brother were also members of this club, and one of the founding members of the Perestroika Club, who is sitting there to the right of me, was Leonid Volkov. Our first involvement in constitutional reform was very simple: Mikhail Gorbachev has asked Oleg Bogomolov, an academician at the institute where I was working, to help him have a vision of the constitutional reform in the Soviet Union. Bogomolov, knowing that our Perestroika Club was very often sitting in his institute, invited me to his office and asked me and my colleagues to draft our vision of constitutional reform in the Soviet Union. That was done together with assistance of Leonid Volkov. And it is my pleasure now to give floor to Leonid Volkov, who was a prominent member of the Constitutional Commission.
Panel II discussion introduction (end of Illarionov):
Thank you, Andrei. Let me tell you that I am sitting very close to Andrei, and his copy of the constitution is in quite a bad shape. I guess he is looking at it quite often.
I can explain. This copy of the constitution was with me during the rally of the opposition, The Other Russia, on April 14th, 2007, and suffered with its holder and owner from police actions. However, while this copy survived, other copies of the constitution were in much worse shape and were left under the boots of the OMON police in the streets of Moscow.
Andrei mentioned some, I would say, provocative ideas. So this is an invitation for questions and answers; perhaps someone from the audience would like to speak. I can only say in reply to Andrei’s Georgia case: We are sitting in a country where the doctrine of Vice President Cheney is in full effect, with the unlimited war powers of the President as Commander-in-Chief and chief law enforcement officer, so we have something in common between these two countries. This is just a short reply. Also, on your issue of “what went wrong,” I think that the birth defect of the Russian constitution is one of the reasons why it goes in this direction. It was a very difficult birth, it was a very painful birth, and obviously the Constitution bears enormous signs of that defect.
QUESTION (Vladimir LAFITSKY)
First and foremost, our goal is not to create more myths: We already have too many myths separating us. Of course, we can joke about what we have or do not have, but I hope to begin a constructive dialog instead. Although I liked Mr. Pashin’s presentation, I disagree with the notion that the courts are tentacles of the former Communist Party. This is not true. We have created a new judiciary. It is very deformed, but it is not a tentacle of the old Communist Party.
In his speech, Professor Trochev asserted that our courts are in constant contact with the executive branch. This is entirely untrue. My field of expertise is the United States, but last year I incorrectly predicted the outcome of presidential elections for the first time since 1980, in part because I had not been to the United States in a long time and was a bit removed from what was happening there. My prediction was incorrect for the same reason as Mr. Trochev’s negative assessment of our judicial system: Mr. Trochev is removed from what is happening in Russia today. Our courts are entirely different now. The judicial branch is like a powerful corporation that lives by its own laws and often totally ignores what the supreme authority – in this case the executive branch – expects of it or demands from it.
We have had many problems, of course. Confucius said: “If you have the right people, your governance will flourish. If you do not have the right people, your governance will wither.” Unfortunately, this is a huge problem for our courts: we have bad judges who are independent. I take full responsibility for these words, because I have studied this issue extensively and came to a conclusion that our judges are very independent. Unfortunately, they are also independent from the laws of conscience. This is the main problem for our courts, not that they meet with so-and-so and decide something over a cup of tea or some stronger beverage. That does not happen. So, on this point I categorically disagree.
I also disagree with what Mr. Illarionov said. Perhaps we are reading different Constitutions. I, too, have a copy of the Constitution here in my briefcase and I am, too, familiar with it. And although my copy is perhaps not as beat-up as Mr. Illarionov’s, I can say that our Constitution is in effect. Yes, it functions with big problems and not nearly as effectively as it should. But it is in effect. The Constitutional Court has not gone into exile, as was said here. No. It so happens that most of the judges are from Saint Petersburg, so the Court has gone to the place of residence of most of the judges. That is a different matter, but it is not exile. We can use these eloquent phrases, but we should not create new myths. Thank you.
Gene Huskey briefly mentioned the corruption of the bureaucracy, but don’t you think that one of the major impediments to legal development is not only the corruption in the judiciary, but also the population that is ready to establish corrupt relations with members of the legal community.
I think there is corruption on a number of levels: there are people in power and there are people at the bottom. I am reminded of a case that happened in Florida where a Russian immigrant came in and wanted to pass the driver’s test. Now, instead of getting the book and studying for an hour as this is an easy test to pass in Florida, his first idea was to call up his cousin who might know someone in the Department of Motor Vehicles. This is a classic problem when you have a society that does not believe that rules work, that believes that you have to have personal contact, right? So, is this corruption? It is, in a way, because what they are trying to do is to in-run the system of rules. So I think that yes, corruption’s a problem, but at that level of ordinary people and also at the bribe-taking level in the bureaucracy. Other people may have different opinions.
If I may, I would also like to offer an answer to this question. I will give an example. When I was a deputy in the Committee for Human Rights, we had a mission – a constitutional mission – to approve candidates for judges for the City Court of Moscow. Five candidates were subjected to our commission, which was headed by a famous human rights advocate Mr. Kovalev. We posed questions to these five candidates, [knowing that] we had to approved at least three of them. All of the five candidates were absolutely incompetent; they were like high school students, ninth grade students, in their morals and in their answers. They were absolutely not qualified for the office. But then we asked a representative of the Ministry of Justice who introduced these five candidates, three men and two women.
[BREAK IN THE RECORDING]
Leonid VOLKOV (cont.)
One of them was originally from the police, from the militia, and she thought, “But these are the best, we don’t have others. What shall we do?” I asked Kovalev: “What shall we do? I can’t vote for these people here, they are not [fit to be] judges. We want to have good judges, it is very important to have better court systems and justice system, and so on.”
But after all, we were compelled to approve at least two of them in the second court, not the first court, but the second tier court. So can imagine what professor Pomerantz told us about moral qualification and cultural qualification of the judges, which is really the most important for the Russian reform and for the implementation of the Russian constitution. In fact, it is really necessary to make a total kadre in reference to the constitution, but it is not very easy to make, because the intellectuals, the real intellectuals and really educated juristic intellectuals do not want to go to this practice [to become judges]. For example, one person suggested by Yeltsin to be Procurator General, was really a decent man, but after a few weeks he refused to continue at his office. So, this is really a problem, and a point I am trying to make is that the international community should try something like at least an exchange of experiences with the Russian judicial system. May be this will help.
Since I was expected to make some suggestions on this issue, on some of these issues, I will try. At least I will offer a little suggestion on where to look for positive experience, which can be studied and applied to the Russian case.
If we look at the last six years, there was a country, which six years ago would be much lower on the Transparency International’s corruption index than Russia. It was Georgia. In the last six years there was no country in the world that has changed so dramatically, actually, skyrocketed to the top levels of the Transparency International corruption index, being much, much less corrupted. This does not mean that there is no corruption in Georgia, they do have something, but it is incomparable -- what they have today and what they had six years ago. This happened within a really short period of time, within five years, with almost the same people, in a country which, frankly speaking, is much worse economically, politically, geopolitically, and so on [than Russia]. But now when we are talking about the Georgians (the Russian people, as you know, lived with Georgians in the same country and we know each other quite well) it is quite hard even to understand whether it is true or not, or may be they are trying to fool us. Still, this is a fact of life: they stopped to bribe their police – the traffic police, they stopped to bribe several other organizations [as well]. It is absolutely amazing. The new generation (I talk to some of them recently), they do not know now how to bribe officials. I am talking young generation; the old generation still remembers, but they are, too, losing this quality pretty quickly. This is amazing. I think, for all people, for lawyers and those who implement law etc., this experience is absolutely unique. It definitely should be studied so that we could see what has been done there and what can be implemented in Russia.
On the question of what went wrong, since this conference is in Washington, perhaps it would not be inappropriate to examine the policy of the United States, which at that time 15 years ago was very, very influential in Moscow, indeed. I speak from having been the chief American political analyst at the embassy in Moscow during those months, and certainly Washington’s reaction to the proroguing of the parliament and particularly to the abrogation of the constitutional court was one of massive indifference. What Washington wanted was a constitutional system, which would allow the continuation of macro-economic stabilization policy as defined by neo-liberal doctrine, and was indifferent to almost any other potential problem within the constitutional draft, even though the embassy reported on those problems in some detail.
Then let’s not forget that when the constitution was ratified there was also an election for a new state Duma. In that election, the Russian people decisively rejected Gaidar’s party and gave massive support to the Communist party and Zhirinovsky. This coincided with the visit to Moscow by the then-American Vice President, and the question then came: should Russian policy under its new constitutional system adhere to the will of the people or should it maintain the neo-liberal program. The advice given to the Russian government was to do the latter. So, at the first instance when the question of respect of constitutionalism or even rule of law came up, the policy of United States at the time when it had enormous influence in Moscow was the wrong one.
Thank you for this comment. I cannot withstand the temptation of a one minute counter-comment. We are now publishing a new volume, the 2nd half of 1993. I write there that on September 14, President Yeltsin held his presidential council, and a member of the council, Mr. Kostikov, has it in his memoirs that the President told his advisors: “Today I got a call from President Clinton. The United States is very worried about the destiny of privatization in Russia. So I recommend now to approve the edict to dissolve the parliament.” It was an interesting example of that influence, which you mentioned. And only my friends in the Labor Party of Britain were the only political force, who really condemned President Yeltsin for his actions on the 21 of September, 1993.
I did not intend to raise this issue here, but I am very grateful to you for your presentation. During the coup d’état of September 1993, I was with President Gorbachev in Italy. As soon as we heard the news that he had basically dissolved the parliament and shut down the whole program, we went to Rome to hold a series of meetings. I took part in them. Gorbachev met with the Italian foreign minister, the leaders of both houses of parliament, the prime minister, the President, and the Pope, all on the same day. His message was: do not let these unconstitutional actions stand. Sitting in that meeting with the Italian president, I saw that the Italians and the Europeans were wavering. However, later we learned that, under strong pressure from Washington, the Europeans ended up supporting these actions. I think that is a lesson to all of us for the future.
Andrei Illarionov touched on the topic of federalism in Russia and spoke of the destructive influence of imperial ambitions on the growth of democracy. As he explained, the vertical consolidation of power over the eight years of Vladimir Putin has happened due to the need to preserve Russia’s territory, or its territorial integrity. Many historians have studied this question throughout Russian history, and they have noted a certain tension in Russia between the growth of individual liberty and the preservation of the territorial integrity of this enormous country. Do you think this problem exists, and if so, how can it be resolved?
This problem does exist, and it is very serious. This problem goes beyond a purely political discussion. It is a fundamental philosophical and legal problem. On the one hand, the legal equality of all citizens of the country is an essential prerequisite for a democratic and liberal state. However, having national or ethnic autonomous entities and regions with special rules clearly contradicts this principle. I think the world has been trying to find a reasonable, democratic solution to this problem but has yet to find this ideal. One solution would be extreme regionalization and federalism, which would fundamentally alter the political and governmental structure of the country. For many in the country’s national political elite (or should we say, the ethnic Russian political elite), and for a significant number of the country’s ethnic Russian citizens, the very thought of this (which, incidentally, has never been proposed) would be so unacceptable that they could not even think about it. So the country is sliding in the opposite direction. In other words, you are absolutely right that this is one of Russia’s fundamental problems, much more fundamental than all the economic problems and all other issues we normally talk about.
In my opinion, the single greatest and most powerful achievement of the 1993 Constitution is that it preserved and strengthened the constitutional federation. The Russian Federation came close to falling apart in 1991-1992. The Constitution cemented the concept of a federation based on a constitution rather than a treaty. Another major step in this direction occurred after 2001, when the member states of the federation amended their constitutions to make them consistent with the federal Constitution. But unfortunately, the pendulum subsequently swung back the other way, and the attack on the principle of federalism began. Today federalism is becoming more and more of a fiction and that is the problem we need to talk about. Still, the undeniable achievement of the 1993 Constitution is that it saved our constitutional federation. In this sense I totally support the way it has worked out.
You know, things happened so inconsistently. The Constitution passed through several stages of development in 1993, and ultimately the conflict ended with a decisive victory for President Yeltsin. As a result, changes were made to the text of the Constitution that made it worse, in particular, the procedure for choosing the members of the Federation Council. In one sense, however, the Constitution became better in the fall than it had been in the summer, because the provision stating that the member republics of the federation are sovereign states was removed. To add to what Mr. Rumyantsev just said, I believe this was a very important step in strengthening the Russian state as such.
There is a fundamental question that has not yet been answered: was the Constitution of 1993 actually adopted? Unfortunately, this question is often overlooked, but I would like to discuss it.
I would be happy to begin answering that question. I will be brief, because I discuss this subject in my introductory article, which talks about the last 6 months of 1993, in our Anthology on the History of the Drafting and Adoption of the Constitution. It will be published on March 31.
By all appearances, the Constitution was not adopted, but it was a very complicated situation. As you know, President Yeltsin held the referendum on the Constitution not according to the previous Constitution that was still formally in effect, i.e. not until September 21, but until December 25, 1993. Nor did he conduct the vote pursuant to the Law on Referenda. He held the referendum on the basis of his own order of October 15 and its provisions on voting. Moreover, as democrats from Aleksander Sobyanin’s Center and Communists like Yelena Lukyanova demonstrated persuasively with their data, only 43 percent voted for the constitution, not 57 percent. But this is a formalistic legal approach. The Constitution was adopted, because the vast majority of political forces in the country were exhausted, just tired to death of the enervating political battles and confrontations.
The Constitution was essentially adopted as the lesser evil. All the problems with its adoption and its birth trauma were accepted as a lesser evil than having no fundamental law at all. In a sense, it was a social contract that we entered into because we had no choice. It was better than nothing. In other words, in a formal legal sense, it was not adopted. But politically and practically, it was adopted, because we agreed that it was the only alternative to the horrible things that could have happened if we had no constitution at all.
I touched upon this question as well, because I knew that people preferred to have any kind of constitution rather than no constitution, as Mr. Rumyantsev has said, but I can say that we can thank the opposition as well, because there was a special commission organized by the state Duma in the early 1994, and I talked to one of the active members of this commission, who said that they prefer not to publish the results of this inquiry about if the constitution were adopted by the vote, because otherwise, as Mr. Rumiantsev has said, the constitution should be considered as a docket and we will be in a dead end, because, I agree with Mr. Rumiantsev, that according to that actual constitution, the previous constitution was in force up to the December 25, but if this actual constitution had not been adopted, the previous constitution was considered to be not in force according to the presidential decree 1400. So that was a certain consensus. That is why I think that we need not raise this question, whether it had been adopted according to the lawful and legitimate procedure. But it was adopted as a consensus, as a certain agreement between different political forces of the Russian society. Thank you.
Globalization and the Role of International Law
Let us turn to the question of the Russian Orthodox Church and its role in the drafting of the Constitution. Let me tell you that this has been a challenge. During early 1990s, at a time when radical democratic thinking was overwhelming in the Russian parliament, the Russian Orthodox Church was an institution that was also in a stage of emancipation from the previous times. I personally have established very close and fruitful relations with Patriarch Alexei himself and with Kirill, who is the current Patriarch, and we had a very interesting exchange of opinions. These blue volumes, which I highly recommend to you to have in your library—this is a bit of an advertisement here, I am very sorry; those who are from institutes and universities, please, write to the Russian Foundation for Constitutional Reforms (firstname.lastname@example.org) and order this set of ten volumes. These volumes contain this correspondence with the Patriarch.
I am very proud of Section 3 of the draft of our Constitution, which was called Civil Society. Unfortunately, people like [former St. Petersburg Mayor Anatoly] Sobchak were fruitful in fighting our Section 3. It had all the necessary limits on state intervention into the civil society institutions and, on the other hand, it had all the necessary constitutional guarantees for the development of civil society institutions. It was extremely important in our case, but, unfortunately, those who thought that the constitution was too long, too detailed, and that civil society is a philosophic category succeeded in crossing out that section.
However, there are Articles 62 and 65 on religious organizations, and it is interesting that the Russian Orthodox Church was very interested in the protection of property rights of the religious organizations, which would be guaranteed by law. That was important, and I discussed it several times with Metropolite Kirill.
And today, the current Constitution’s Article 28 is very shallow, is a very, I think, weak article, unfortunately. This is a result of the “short constitution” concept.
Our next panel is on “Globalization and the Role of International Law in the Development of the Russian Constitution.” I think it promises to be a very important, a very interesting session, and our first speaker is William Butler, John Edward Fowler Distinguished Professor of Law, Dickerson School of Law, Penn State University. The theme is Russian Law and the International Legal System.
Introduction for Kuvaldin:
Thank you very much, Professor Butler. It was a pleasure for us, members of the Constitutional Drafting Commission to hear how you praised Article 15.4. The whole article 15 about the legal system of the Russian Federation is taken directly from the Constitutional Commission’s draft, and Article 15.4 is one of the legal guarantees for the rule of law in the Russian Federation. That is why I appreciate it. Thank you for your nice talk.
Next speaker is Viktor Kuvaldin, Head of Department of Political and Social Sciences, Moscow School of Economics, Moscow State University. Professor Kuvaldin is a long-time partner in the Gorbachev Foundation, so, please, Professor Kuvaldin.
Thank you, Viktor, for that excellent presentation. It is no accident that Viktor is one of the speakers here, and I would like our American colleagues to note how well-balanced the Russian delegation is at this conference. We have people with very similar views who, at one point or another in this historical process, ended up on opposite sides. But we are still presenting the full range of opinions of Russian constitutionalists here. Some may call themselves economists, political scientists, or experts in comparative politics or global studies. The important thing is that we are presenting this interdisciplinary, comprehensive analysis of the events in the Russian Federation, and that is a very good thing. Thanks again for your excellent presentation.
Our next speaker is Vladimir Lafitsky, who served as an expert adviser to the Constitutional Commission from 1991 to 1993, and is now the deputy director of the State—the state, mind you—Institute of Comparative Legislation in the Government of the Russian Federation. He was directly involved in the drafting of the Constitution. Mr. Lafitsky, please.
Now it is real pleasure to introduce a man who has taken on the challenge to be our partner in this conference. It has been a challenge. I can tell you that William Pomeranz was one of the U.S. scholars who took part in our international research devoted to the 15th Anniversary of the Russian Constitution, which Alexander Lebedev here described as a white paper.
I am very proud to tell you that 15 years after drafting the constitution we were awarded by President Medvedev a pochetnaya gramota [Certificate of Honor] of the President of Russian Federation. It is a new award for our input in the drafting of the Russian Constitution. And when we were at the award ceremony in Kremlin, Mr. Sheinis came to the rostrum and told Mr. Naryshkin, the Head of the Presidential Administration: “This is our international report on the problems of the implementation of the Russian Constitution. I hope that you and the administration will study this and will comply.” So this was a real action by an independent constitutionalist. And William Pomeranz was part of it. So now I am proud to announce that he is here to speak to us.
Thank you, Will. Thank you very much. And thank you, actually, we should thank Will Pomeranz and the Kennan Institute for being our hosts for this excellent conference. It is now quarter past midnight in Russia, but there is still one young man who is our discussant on this fourth panel, and we would like to ask for five minutes for Stanislaw Stanskih, a representative of a younger generation of Russian constitutionalists. He is deputy editor-in-chief of the Journal of Constitutional Justice, which is edited and published in the constitutional court.