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The Russian at Fifteen: Assessments and Current Challenges to ’s Legal Development Conference Proceedings

Edited by F. Dresen and . Pomeranz

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ISBN 1-933549-97-1 Woodrow Wilson International Center for Scholars Lee H. Hamilton, President and Director

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ABOUT THE CENTER The Center is the living memorial of the United States of America to the nation’s twenty- eighth president, Woodrow Wilson. Congress established the Woodrow Wilson Center in 1968 as an international institute for advanced study, “symbolizing and strengthening the fruitful relationship between the world of learning and the world of public affairs.” The Center opened in 1970 under its own board of trustees. In all its activities the Woodrow Wilson Center is a nonprofit, nonpartisan organization, supported financially by annual appropriations from Congress, and by the contributions of foundations, corporations, and individuals. Conclusions or opinions expressed in Center pub- lications and programs are those of the authors and speakers and do not necessarily reflect the views of the Center staff, fellows, trustees, advisory groups, or any individuals or organizations that provide financial support to the Center. The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia’s Legal Development

Conference Proceedings Edited by F. Joseph Dresen and William E. Pomeranz Washington, D.C.

Occasional Paper # 304

Contents

Preface 3

Conference Program 4

Panelist Biographies 5

Edited Transcript

Opening Remarks 11

PANEL 18 Constitutional Guarantees of the Rule of State

PANEL II 34 Problems of Political-Legal Culture and Civil Society

PANEL III 51 Constitutional Guarantees of Social, Economic, and Regional Development

PANEL IV 65 Globalization and the Role of

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 1

Preface

he troubled birth of the 1993 Russian director, Oleg Rumyantsev, organized a one- Constitution remains one of the most day conference at the Woodrow Wilson Center Tcontroversial aspects of post-Soviet on March 19, 2009 entitled “The Russian Russian history. What was originally conceived Constitution at Fifteen: Assessments and Current as a deliberate, collaborative process was ulti- Challenges to Russia’s Legal Development.” mately resolved by violence when, in the after- Participants included former President Mikhail math of the October 1993 shelling of the White Gorbachev, several “founding fathers” of the House, a new constitution backed by President Russian Constitution, and leading western Yeltsin was quickly adopted through a national scholars on Russian law and society. vote. Yet despite its inauspicious beginnings, In opening the conference, President the Russian Constitution celebrated its 15th Gorbachev characterized the introduction of anniversary in 2008. this new constitution as a “watershed event” The present Russian Constitution represents in Russian history, although he added that its a clear break with its most direct predecessor, adoption remains part of a transitional process the 1977 Brezhnev Constitution. Gone are the that Russia has yet to complete. The wide- references to the supremacy of the Communist ranging discussion presented in this edited tran- Party and the requirement that citizens comply script explores this evolutionary process from with standards of socialist conduct. Instead, the the point of view of not only law, but also so- Constitution contains specific sections devoted ciety, politics, economics, governing elites, and to civil rights, the division of powers, property international influences. It includes not only rights, and an independent judiciary. Yet - participants in the drafting of the Constitution, spite such lofty principles, many commentators but critics as well. point to the obvious gap between paper and The conference was made possible through practice when analyzing the implementation of the generous support of Woodrow Wilson the Russian Constitution. Center federal conference funds and the The 15th anniversary of the Constitution’s International Institute of Global Development, adoption marked an appropriate time to as- as well as institutional and expert support from sess its impact on Russia’s post-Soviet political, the Foundation for Constitutional Reforms. economic, and legal development. The Kennan Institute, working with the -based F. Joseph Dresen and Foundation for Constitutional Reforms and its William E. Pomeranz

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 3 The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia’s Legal Development Cosponsored by The International Institute of Global Development, The Foundation for Constitutional Reforms (Russian Federation), and the Kennan Institute

Thursday, March 19, 2009 Andrei Illarionov, Senior Fellow, Center for 9:00 to 5:00 PM Global Liberty and Prosperity, Cato Institute Woodrow Wilson International Center Victor Sheinis, Chief Research Fellow, for Scholars, Washingotn, D.C. Institute of World Economy and International Relations, Russian Academy of Sciences Regina Smyth, Associate Professor, Opening Remarks Department of Political Science, Indiana Lee Hamilton, President and Director, University Woodrow Wilson Center Leonid , Editor-in-Chief, , President, Gorbachev Konstitutsionnyi vestnik Foundation Panel III: Constitutional Guarantees Panel I: Constitutional Guarantees of Social, Economic, and Regional of the Rule of Law State: Problems Development of Implementing the Russian Jeffrey Kahn, Professor, Dedman Constitution School of Law, Southern Methodist Alexei Avtonomov, Editor-in-Chief, University Gosudarstvo i pravo Vladimir Mazaev, Professor, State Sergei Pashin, Federal Justice (retired), University–Higher School of Economics, Professor, Moscow Institute of Economics, Department of Constitutional and Politics and Law Municipal Law Oleg Rumyantsev, President, Foundation for Constitutional Reforms Panel IV: Globalization and the Peter Solomon, Professor, Department of Role of International Law in the Political Science, University of Development of the Russian Alexei Trochev, Law and Society Fellow, Constitution University of Wisconsin Law School William Butler, Edward Fowler Distinguished Professor of Law, Dickinson Commentary School of Law, Penn State University , President, International Viktor Kuvaldin, Head, Department of Institute of Global Development Political and Social Sciences, Moscow School of Economics, Panel II: Problems of Political-Legal Vladimir Lafitsky, Deputy Director, Culture and Civil Society Institute of Legislation and Jurisprudence Eugene Huskey, Willian R. Kenan, Jr. under the Government of the Russian Professor of Political Science, Stetson Federation University William Pomeranz, Deputy Director, Kennan Institute

4 / THE RUSSIAN CONSTITUTION AT FIFTEEN Panelist Biographies

Alexei Avtonomov the founder and director of The Vinogradoff Alexei Avtonomov is the Editor-in-Chief of Institute, which operates as a unit of Penn State Gosudarstvo i pravo, one of Russia’s leading legal Dickinson. Under Professor Butler’s direction, periodicals. He also is the head of the Sector of the Institute coordinates research and teaching Comparative Law Studies at the Institute of State activities related to Russian and CIS legal sys- and Law, Russian Academy of Sciences. He has tems and publishes the journal Sudebnik. published over 200 works, including: Issledovanie The recipient of numerous honors for his opyta i perspektiv razvitiia Federal’nogo Sobraniia, service to Russian and international law, Osnovnye kategorii i instituty izbiratel’nogo prava, and Professor Butler is an Academician of the Pravovye i finansovye osnovy mestnogo samouprav- National Academy of Sciences of and leniia. In addition, he has assisted in the drafting the Russian Academy of Natural Sciences and of numerous pieces of federal legislation, such as is serving his third term as a member of the the “On Social Associations,” “Election of Russian International Court of Commercial the President of the Russian Federation,” and Arbitration. He recently was appointed to the “On Political Parties.” Professor Avtonomov Panel of Distinguished Neutrals as an arbitra- is a graduate of the Moscow State Institute of tor of the International Institute for Conflict International Relations. Prevention and Resolution. He teaches Russian Law; Foreign Investment in Russia William Butler and the Commonwealth of Independent States; William E. Butler is the John Edward Fowler Law of Treaties, Law of the Sea; History of Distinguished Professor of Law at Dickenson International Law; and Comparative Approaches School of Law, Penn State University. He is the to International Law. preeminent authority on the and other former Soviet republics and the author, Mikhail Gorbachev co-author, editor, or translator of more than Since 1992, Mikhail Gorbachev 120 on Soviet, Russian, Ukrainian and has been president of the International other Commonwealth of Independent States Nongovernmental Foundation for Socio- legal systems. He also edits the journal Russian Economic and Political Studies, better known Law, published by the Russian Academy of as . Since March Legal Sciences; the journal Sudebnik, published 1993, he has also been president of Green Cross by The Vinogradoff Institute and the Moscow International—an international independent Higher School of Social and Economic environmental organization with branches Sciences; the East European and Russian Yearbook in more than twenty countries. In September of International and Comparative Law, published 2008, Gorbachev cofounded by The Vinogradoff Institute; and is on the edi- Democratic Party of Russia with Russian busi- torial board of a number of other journals. nessman Alexander Lebedev. The former Chair of Comparative Law at Gorbachev was trained as a lawyer and in ag- the University of London, Professor Butler is ricultural economics, and embarked on a ­career

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 5 in regional and national politics. In March 1985, draftsman of several House ethics reforms. after three General Secretaries in a row had Since leaving the House, Hamilton has served passed away, Gorbachev was elected General on several commissions including serving as Secretary of the Party Central Committee - Vice-Chair of the National Commission on the highest post in the and party Terrorist Attacks Upon the United States (the hierarchy. Gorbachev initiated a program of 9/11 Commission), co-chair of the Iraq Study sweeping reforms in the Soviet Union known Group, the National Commission on the War as and . Gorbachev also in- Powers of the President and the Congress, and stituted a new foreign policy which is widely the Congressional Commission on the Strategic credited for the peaceful end of Soviet con- Posture of the United States. He is currently a trol over Eastern . His diplomacy with member of the FBI Director’s Advisory Board, President Ronald Reagan resulted in landmark the Defense Secretary’s National Security Study arms control treaties and substantially contrib- Group, and the U.S. Department of uted to the peaceful conclusion of the Security Task Force on Preventing the Entry of in the late 1980s. Weapons of Mass Effect on Soil. As a result of Gorbachev’s domestic re- Mr. Hamilton is a graduate of DePauw forms, the Congress of People’s Deputies of the University and Indiana University law school, and USSR—the first competitively elected parlia- studied for a year at Goethe University in . ment in Soviet history—was seated. On March Before his election to Congress, he practiced law 15, 1990, the Congress of People’s Deputies of in and Columbus, Indiana. the USSR elected Gorbachev as President of the USSR. Eugene Huskey In recognition of his outstanding services as Eugene Huskey is William R. Kenan, Jr. a great reformer and world political leader, who Professor of Political Science and Director of greatly contributed in changing for the better at Stetson University in Florida. the very nature of world development, Mikhail He received his Ph.D. from the London School Gorbachev was awarded the Nobel Peace Prize of Economics and Political Science and taught on October 15, 1990. On December 25, 1991, at Bowdoin College and Colgate University Gorbachev stepped down as head of state, and before coming to Stetson in 1989. the Soviet Union was formally dissolved the Professor Huskey’s research and next day. focus on politics and legal affairs in the Soviet Union and the postcommunist countries of Lee H. Hamilton Russia and . He is the author of more Lee H. Hamilton is president and director of than forty academic articles or chapters the Woodrow Wilson International Center and the author or editor of four books: Russian for Scholars, and director of The Center on Lawyers and the Soviet State, Princeton, 1986; Congress at Indiana University. Hamilton Executive Power and Soviet Politics (editor and represented Indiana’s 9th congressional dis- contributor, Sharpe, 1992); Presidential Power in trict for 34 years beginning January 1965. Russia (Sharpe, 1999); and Russian Officialdom: He served as chairman and ranking member Bureaucracy, State, and Society from Alexander of the House Committee on Foreign Affairs, III to (editor and contributor, with chaired the Subcommittee on Europe and the Rowney, Palgrave Macmillan, forthcoming). , the Permanent Select Committee He is currently researching the politics of the on Intelligence, the Select Committee to opposition in Kyrgyzstan, a project support- Investigate Covert Arms Transactions with Iran, ed by a grant from the National Council for the Joint Economic Committee, and the Joint Eurasian and East European Research. Huskey Committee on the Organization of Congress. is associate editor of Russian Review and a As a member of the House Standards of Official member of the editorial board of The Journal of Conduct Committee Hamilton was a primary Postcommunist and Transition Studies (Glasgow)

6 / THE RUSSIAN CONSTITUTION AT FIFTEEN and Demokratizatsiya: The Journal of Post-Soviet P. Griesa of the United States District Court Democratization (Washington, D.C.). for the Southern District of . Kahn served as a trial attorney in the Civil Division, Andrei Illarionov United States Department of Justice from Andrei Illarionov is a senior fellow at the October 2003 until April 2006. In 2005, he Cato Institute’s Center for Global Liberty and was briefly detailed to the Criminal Division to Prosperity. From 2000 to December 2005 he conduct research in Russia on Russian crimi- was the chief economic adviser of Russian nal procedure for the Justice Department’s President . Illarionov also served Office of Overseas Prosecutorial Development, as the president’s personal representative (sherpa) Assistance and Training. in the G-8. He is one of Russia’s most forceful and articulate of an open society and Viktor Kuvaldin democratic capitalism. Illarionov received his Viktor Kuvaldin is the head of the Department Ph.D. from St. Petersburg University in 1987. of Social Sciences and Humanities, Moscow From 1993 to 1994 Illarionov served as chief School of Economics, Moscow State University. economic adviser to the prime minister of the Among his previous positions, Kuvaldin Russian Federation, . He worked for many years at the Institute of resigned in February 1994 to protest changes in World Economy and International Relations, the government’s economic policy. In 1994 USSR Academy of Sciences. In addition, from Illarionov founded the Institute of Economic 1989-91, he worked as a consultant on foreign Analysis and became its director. Illarionov policy issues to the Central Committee and has coauthored several economic programs for also worked as an advisor and speechwriter to Russian governments and has written three President Gorbachev. Kuvaldin graduated from books and more than 300 articles on Russian Moscow State University and has published economic and social policies. over 50 scholarly articles.

Jeffrey Kahn Vladimir Lafitsky Jeffrey Kahn is an assistant professor of law at Vladimir Lafitsky is the deputy director of the Dedman School of Law and a Colin Powell the Institute of Legislation and Jurisprudence Fellow at the John Goodwin Tower Center under the Government of the Russian for Political Studies. Kahn teaches and writes Federation. He participated in the drafting of on American constitutional law, Russian the Russian Constitution and served as an ex- law, human rights, and counterterrorism. In pert for the Constitutional Commission of the 2007-2008 he received the Maguire Teaching Russian Federation from 1992-93. A graduate Fellow Award from the Cary M. Maguire of the law faculty of Moscow State University, Center for Ethics and Public Responsibility Lafitsky has published widely on issues of con- at SMU for his seminar, “Perspectives on stitutional law dealing both with Russia and Counterterrorism.” He is also a member of with other foreign countries. His scholarly the founding Advisory Board for the SMU publications include: Kongress SShA, SShA: Human Rights Education Program. Konstitutsiia i zakonodatel’nye akty, Ocherki met- Kahn’s doctoral dissertation was published odologii zakonotvorchestva, and Osnovy konstitut- by while he was a sionnogo prava SShA. law student as Federalism, Democratization, and the Rule of Law in Russia (2002). During law Alexander Lebedev school, he also served as a lecturer on European Alexander Lebedev is considered one of the top human rights law at summer training programs business figures in Russia, with major interests in Moscow for Russian lawyers sponsored by in the banking, communications, energy, and the . Following graduation, tourist industries. He is the largest shareholder he was a law clerk to the Honorable Thomas in after the Russian Government, and

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 7 has media holdings including and has taught Russian law at the Center for Britain’s , as well as a significant Eurasian, Russian, and East European Studies stake in Russia’s gas monopoly, at Georgetown University. Prior to joining the Lebedev is the founder and president of the Kennan Institute, Pomeranz practiced interna- International Institute of Global Development, tional law in the United States and Moscow, an independent research institute dedicated to Russia. He also served as Program Officer for studying comparative democratic systems. He is Russia, Ukraine, and at the National also the cofounder, with Mikhail Gorbachev, of Endowment for Democracy from 1992-1999. the Independent Democratic Party of Russia. Pomeranz received his J.D. cum laude from American University in 1998. In addition, he Vladimir Mazaev was awarded a Ph.D. in Russian History from Vladimir Mazaev is a professor at State the School of Slavonic and East European University–Higher School of Economics in the Studies, University of London, where he wrote Department of Constitutional and Municipal his dissertation on the emergence and develop- Law. He also is the Director General of the ment of the pre-revolutionary Russian legal BMB law firm. A graduate of Voronezh State profession (the advokatura). His research inter- University, Mazaev has written widely on is- ests include Russian legal history as well current sues of democracy, political systems, and the Russian commercial and constitutional law. constitutional rights and freedoms of citizens. Between 1990-93, Professor Mazaev served as Oleg Rumyantsev a People’s Deputy in the Soviet and Russian Oleg Rumyantsev is president of the Moscow- , where he also was a member of the based NGO Foundation for Constitutional Constitutional Commission and a member of Reforms. He was educated at the Moscow State the Commission of the Council of Lomonosov University and the Moscow State on Repressed and Deported Persons. Legal Academy, and has also studied at the ELTE University in Budapest, the London School of Sergei Pashin Economics, and the University of Toronto. Sergei Pashin is a professor at the Moscow He served in the Russian Parliament from Institute of Economics, Politics and Law. 1990-93, where he was the Executive Senior During the 1990s, Pashin played an active role Secretary of the Constitutional Commission in the legal reform process. He served as head and the head of its drafting Working Group. of the Department of Judicial Reform in the of- From 1994-96, he was a legal advisor to the fice of the Russian President and co-authored State Committee on Legislation, and of the Conception of Judicial Reform of the Russian from 1996-98 he was Deputy Secretary to Federation. Pashin also played a critical role in the Parliamentary Assembly of the Union of the introduction of jury trials in the Russian Russia and Belarus. In addition to his gov- Federation, and went on to serve as a federal ernment service, Rumyantsev’s corporate ca- on the Moscow City Court (now retired). reer has included senior positions with Mars For his many contributions, he was named an LLC, Shell EP Services (Russia), and TNK-BP Honored Lawyer of the Russian Federation. Management. He is a widely published expert The author of over 80 scholarly publica- on political science, Russian constitutional law, tions, Pashin is also a member of the Moscow and on Russia’s investment climate. He is also Group and the Independent Council co-founder and director of the Rule of Law on Expertise and Law. Program at the International Institute of Global Development, chaired by Mikhail Gorbachev William Pomeranz and Aleksander Lebedev. William Pomeranz is the deputy director of the Kennan Institute, a part of the Woodrow Victor Sheinis Wilson International Center for Scholars locat- Victor Sheinis is chief research fellow, Institute ed in Washington, D.C. In addition, Pomeranz of World Economy and International Relations,

8 / THE RUSSIAN CONSTITUTION AT FIFTEEN Russian Academy of Sciences. A graduate of Peter Solomon Leningrad State University, Professor Sheinis Peter H. Solomon, Jr. (Ph.D. Columbia has had an illustrious career both in academia University) is Professor of Political Science, Law and in politics. He served as a People’s Deputy and Criminology at the University of Toronto. of the RSFSR in 1990, and was a member of He specializes in post-Soviet politics and in the the Supreme Council of Russia between 1992- politics of law and courts in various countries, 93. He later served as Deputy Chairman of including and the USA. He is the au- the Commission for Draft Legislation under thor of Soviet Criminologists and Criminal Policy President Yelstin, as well as a (1978); Criminal Justice Policy: From Research to Deputy from 1993-95. Reform (1983), Soviet Criminal Justice under Stalin (: Cambridge University Press, 1996 Regina Smyth [a Russian- edition Sovetskaia iustitsiia Regina Smyth is an associate professor in the pri Staline was published by “ROSSPEN” in Department of Political Science at Indiana 1998 and reprinted in 2008]); Reforming Justice in University. Smyth’s research explores the re- Russia, 1864-1996: Power, Culture, and the Limits lationship between democratic development of Legal Order (Armonk, NY: Sharpe, 1997), and electoral competition by focusing on can- editor and contributor; Courts and Transition in didates, political parties and party systems in Russia: The Challenge of Judicial Reform (Boulder post-Communist states. Her work is based CO: Westview Press, 2000) with Todd on original data collection that has been sup- Foglesong; and Crime, Criminal Justice, and ported by the National Science Foundation, Criminology in Post-Soviet Ukraine (2001) with Social Science Research Council, Todd Foglesong. Solomon’s current research Richardson Foundation, and the National includes judicial and legal reform in contempo- Council for Eurasian and East European rary Russia and law and courts in authoritarian Research. Her book Candidate Strategies and and transitional states. He is an active partici- Electoral Competition in the Russian Federation: pant in judicial reform projects, including the Democracy without Foundation (Cambridge Canada-Russia Judicial Partnership and the 2006) explains the failure of Russian democ- Canada-Ukraine Judicial Cooperation Project, racy in terms of the factors that impeded co- both funded by CIDA. He is also a member of operation among candidates and party leaders the Board of Trustees of the Institut prava i pub- and failed to produce a viable opposition to lichnoi politiki (Moscow) and the editorial boards the ruling party. Her study of Russian party of three journals, and a former Director of the organizations examines the inability of par- Centre for Russian and East European Studies ties to articulate coherent policy positions or at the Munk Centre for International Studies. frame policy debates. Her current work on party and party system consolidation across the Alexei Trochev post-Communist states examines the processes Alexei Trochev is a Law and Society Fellow at that produce congruence between key politi- the University of Wisconsin Law School. He re- cal alignments or power centers and ceived a bachelor’s degree in Russian law from competition. Smyth’s work has been published State University in northwestern in Politics and Society, Comparative Politics, and Russia. He went on to obtain a master’s degree Comparative Political Studies. Her teaching in- in public administration from the University terests extend from her research. She has of Kansas and a doctorate in political science taught courses on Russian and Soviet Politics, from the University of Toronto. He has taught Democracy and Elections, Comparative at the Queen’s University in Canada and the Democratic Institutions, Comparative Parties Pomor State University Law School in Russia. and Party Systems, Voter Turnout, and West In addition to several chapters on the informal European Politics. She has taught at Penn dimensions of Russian judicial politics, his ar- State University and Harvard University be- ticles on post-Soviet constitutional courts have fore coming to Indiana University in 2006. appeared in the American Journal of Comparative

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 9 Law, Law & Society Review, I-CON International Leonid Volkov Journal of Constitutional Law, and East European Leonid Volkov is currently the Editor-in-Chief Constitutional Review. His book, Judging Russia: of Konstitutsionnyi Vestnik. Volkov graduated Constitutional Court in Russian Politics, 1990- from Moscow State University and was one of 2006 (Cambridge University Press, 2008), re- the founders of the Russian Social Democratic ceived an Outstanding Academic Title Award Party. He was elected a People’s Deputy in from Choice magazine. 1990, and later served as a member of the Constitutional Commission. Volkov presently and works in Germany.

10 / THE RUSSIAN CONSTITUTION AT FIFTEEN OPENING REMARKS

Lee H. Hamilton Committee of the Communist Party of the Good morning to all of you and thank you Soviet Union and later, of course, as presi- very much for coming. I am Lee Hamilton, dent of the Soviet Union. president and director of the Woodrow Wilson His new approach to foreign policy— International Center for Scholars. I am pleased emphasizing major arms reductions, glob- to welcome each of you here today to attend interdependence, and detente with the a conference on the Russian Constitution West—tempered the hostile environment that at Fifteen. I would especially like to wel- characterized much of the Cold War. These come back to the Center President Mikhail policies permitted the Soviet Union and the Gorbachev as well Alexander Lebedev, presi- United States to move away from confrontation dent of the International Institute of Global towards reconciliation and cooperation. Development, both of whom have the exper- His reform program of glasnost and perestroika tise that undoubtedly will enrich the conversa- within the Soviet Union initiated a series of tion that follows. I want to thank this confer- events that dramatically transformed Eastern ence’s co-sponsors: The International Institute Europe, the Soviet Union, and indeed the of Global Development, The Foundation for world. Opportunities to use force were resisted Constitutional Reforms, and of course the and the threat of a catastrophic European or Wilson Center’s Kennan Institute under the global war was lifted. His political, intellectual, outstanding leadership of Blair and his and moral leadership during this time ensured exceptional staff—they are a source of great a more peaceful transformation of the world pride for the Wilson Center. order and admiration across the globe. That You meet here today to discuss the Russian leadership was recognized in 1990 when he was Constitution after one-and-a-half decades. awarded the Nobel Peace Prize. He continues Nothing is more fundamental to the survival to work on behalf of reconciliation and respon- of a free society than the rule of law, which sible global governance. He is the founding is codified in the Russian Constitution. This, president of Green Cross International, a non- of course, lends great significance to your profit, non-governmental organization that has task. We are fortunate to have a historic fig- worked since 1993 for sustainable development, ure with us to steer the dialogue. President environmental awareness and peaceful resolu- Gorbachev is undoubtedly one of the most tion of conflicts. Through his work as president consequential figures of the 20th century. As of the Gorbachev Foundation he, of course, one of our former Wilson Center’s Fellows, remains a very important and highly respected a Russian scholar, has written: “No one is international figure. more responsible for ending a Cold War than Unfortunately, I have to attend a meeting at President Gorbachev, for his leadership dur- the State Department and in a very few min- ing this tumultuous era the world owes him utes I will be leaving, but I certainly wish you a dealt of gratitude.” He served as leader of all a very productive conference, and we take the Soviet Union from 1985 to 1991, during a great pride in welcoming back to the Center that time as General Secretary of the Central President Gorbachev.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 11 Mikhail GORBACHEV foundations. In this sense, I believe that, despite Good morning. its faults, we needed this Constitution, and so This is a great event. I know everyone here it was adopted. But for all its importance, this is very busy, but it is nice to see people who is only a process or rather a particular stage in have made the time to come here, even from the process through which all countries in the Russia, to take part in this discussion on the transitional period must pass. Russian Constitution. I should point out this In Madrid, I had the opportunity to work young man sitting here, Oleg Rumyantsev. with the king of to organize and start a During perestroika, he was still learning his way club for countries in transition. There were 35 around the corridors of power, and now he is members—leaders, presidents, and prime min- the head of a foundation on constsitutional re- isters. The club is still active. But it was very form. I am very happy that he and other peo- important to find the right language: “transi- ple here who worked with me, like Professor tion period,” “democratic transition,” and the Viktor Kuvaldin from my presidential team, “road map” for democratic change and demo- who is now with the Gorbachev Foundation at cratic processes. This club played and continues Moscow State University, are still actively in- to play a role in maintaining contacts among volved. This is especially important now, when these countries. They are very different coun- the future is so uncertain, because these people tries in many ways, but they also have much are prepared, they have been through serious in common, so it is very important for them crises before. to have opportunities to meet and share their I would like to thank the Woodrow Wilson experiences. Center, Oleg Rumyantsev’s Foundation for The Russian Constitution is a document Constitutional Reforms, and the Kennan whose roots reach back to the time of perestroi- Institute. I have good contacts with all of these . Prior to that time we had had only two organizations, and we work together from time —the Stalin Constitution and the to time. I would like to pay special tribute to Brezhnev Constitution. They were very simi- the Kennan Institute and the Woodrow Wilson lar, they complemented each other. I took part Center. I think this is my second or third time in the drafting of the Brezhnev Constitution, I here, as those who have worked here for a long spoke in favor of it, and I praised it. Of course, time will remember. it would have been impossible to say anything This conference marks the 15th anniversary of else then. Besides, it did make some progress in the Russian Constitution. For Mr. Rumyantsev, with the Stalin Constitution. the Constitution is all there is in his life and It was during the years of perestroika and glas- in history, so it takes up the entire agenda. nost that the foundation for the transition to One might think everything began with the democracy, rule of law, and a market economy Constitution and there was nothing prior to it. was created. Anyone who knows our country However, it appeared at a very specific point in will agree that if this was all we did, i.e. just laid history, after the shelling of the Russian par- a foundation, this would have been sufficient liament. It took the efforts of those who cared to be recognized and praised by future genera- about the cause of reform to say, “No, we must tions, because it was very difficult to do. live by the Constitution and by the law, and not First of all, it was an enormous risk, and sec- by the rule of might makes right.” ond, it was an extremely complex task. Consider I would like to gently remind you that the that our country was under the Tatar-Mongol Constitution was a fact, an event, and an - Yoke for 250 years, followed by two and a half tirely new constitution in a different country— centuries of serfdom, and then communism not in the USSR, but in Russia. It was a - to bring it to three centuries. Our task was to shed event in our history, but it was particularly take this country, with its complex history, and important, in the chaos and confusion as the make a decisive break. It was not easy to act de- USSR disintegrated, to find a way to hold the cisively, because there were constant differences society together with common goals and legal of opinion and each step was debated. Perhaps

12 / THE RUSSIAN CONSTITUTION AT FIFTEEN this was good, because things could have gone only in the newspapers, but also in music, in very wrong. If the country had not taken the songs. We had a great rock musician, who later evolutionary path but had tried to change by died young, who sang: “We demand change! force, it could have ended very badly, not only We demand change!” It rang out like a bell. for the country but for the whole world. You It could not be ignored. Any person capable understand why. Yet this task was difficult in of reflection had to respond. When you hold every respect. The process of democratic transi- that office, you understand that power was not tion is difficult everywhere, but in our case it given to you for your personal enjoyment, but was many times more complex. in order to respond to these challenges and meet I felt this personally, because much of it hap- these expectations. pened while I held positions of responsibility So I was at the center of these events. And in the government, and these steps could not the first thing I did in response to this demand have been taken without my participation and for change was to begin a nationwide discus- consent. Why do I say “consent?” In the mid- sion under the well-known policies of glasnost 1980s, the whole country called out for change. and perestroika. Many people still argue about It was not just the intelligentsia, which should whether glasnost was necessary on such a large always play the role of critically assessing the scale, or whether it was a factor in the chaos, existing power structure. No, in this case the whether it unleashed the forces that made the entire society was united in the belief that we country ungovernable. All these years after per- could not go on living as we had. This is the estroika—over twenty years have passed now—I simple, paramount social consensus of the time am now convinced that without glasnost, we that will go down in history: we cannot keep would not have been able even to start the pro- living this way. cess of change. I visited this country several times in recent Clearly, this was a project that would take years, including during your recent election, decades, but the most thoughtful people among and one time after I gave a speech someone the supporters of democracy—some of whom asked me: “You implemented reforms in your are sitting here today, including our distin- country. What advice would you give us? What guished professor, one of the smartest and most should we do here?” talented people—they were all demanding that “Well,” I would reply, “giving advice to we go faster and faster. “Why are you hesitat- Americans can be a risky business. You some- ing?” they would say. “Are you indecisive? times think you are better than everyone else Nothing is happening, the conservatives are or- and know more than anyone else. I would not ganizing…” And in many cases their warnings want to interfere; I will just wish you success.” proved true. But it was still impossible to do it “But still,” the questioner insisted. “What is that way. We needed 30 years, but I was only your advice?” there for six years, and all of this happened in “You know,” I said, “you need your own that short time. perestroika.” I listened patiently to all of Alexander And that audience of twelve thousand people Solzhenitsyn’s comments. I had a good relation- stood up and applauded. That is when I realized ship with him, even though we are very differ- that you also felt you could not keep living as ent people in terms of our character, the way you had. The country had reached that stage. we see the world, and our views on reform in This was three or four years ago. Russia. He said publicly that Gorbachev’s poli- I still come to the U.S. once or twice a year cy of glasnost ruined everything. At an interna- to give speeches, and I travel around the coun- tional conference of major newspaper editors, try. I once joked that I know America better I finally responded that I do not know know than the presidents of the United States, be- what would have happened without glasnost. I cause I have more time to talk with people. So I think everything would have proceeded gradu- knew that people here were calling for change. ally or even stagnated, and I probably would In our country, this desire was expressed not have held the office of General Secretary of the

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 13 Central Committee of the Communist Party massive Soviet system and tried to fully com- for much longer. Or perhaps not. But I know prehend it and begin to change it, the greater for sure that Solzhenitsyn would have remained the political resistance we faced. in Vermont, chopping wood to stay warm in After the Communist Party lost its mo- the winter. But he returned to Russia, and we nopoly on power, the party and listened to what he said and read everything he then the government nomenklatura realized has written. that their entitlement to power, their ability to We moved forward with great difficulty, but receive power from the top rather than earn- I think we should still give credit to the people ing it in democratic elections, was over. This who responded to the challenges of the time was the main thing that caused all of these so- and helped to implement the policy of glasnost, cial layers to move. These are huge layers and which became freedom of speech. Think about millions of people. The new life, the new - how many things we had to handle! This was a uation, and the new rules of the game forced shock to the nation; we had to get through this them to think: what is next? Ultimately, the first. No constitution could survive there on its Communists lost the elections. They were not own. These young people who were prepared Communists—that is an interesting story, but I to do everything on their own—they could will not digress. not have created a constitution back then. They The next speakers will tell you all about would not have been able to do anything. the Constitution and how things are now. But At the very least, this laid the foundation I should tell you that we reformers were in a for the fundamental changes that began in situation where not even all those close to me politics, the economy, and society. Laws were agreed with me. At the beginning, everyone enacted on freedom of conscience, free elec- was in favor of perestroika, glasnost, and solving all tions, and changing the status of the party. I these problems. But when the reforms began to am referring to the notorious Article 6 of the take effect, and the laws began—just began!— the previous Soviet Constitution, which gave to be implemented, society could not withstand the Communist Party the right, without the it. The elections of 1989 were competitive elec- consent of anyone else, to decide any issue in tions. Before, there would be one person on the country. The Communist Party’s monop- the ballot and we voted for that person, and we oly on power came to an end. And everything called that an “election.” Now there were from changed immediately: we saw what our party 7 to 20 names on the ballot. Everyone wanted really was—a very weak organization propped to be in the parliament and welcomed those up only by that monopoly on power. elections. Thirty-five regional and provincial This ultimately led to free elections in 1989 committee secretaries, career officials who had and to the creation of a real, as opposed to a a firm grip on power in rural areas, lost in those merely decorative, parliament. We now had the elections, even though they controlled all the separation of powers. But all of this was just the resources. That really got the attention of the beginning; the outlines were drawn. However, ! But the most interesting thing was it was still a long way before the substance could that, despite this, 86 percent of the members of be added to these new forms and before they parliament elected were Communists. That had could begin to function effectively. never happened before. So the people found Among the most important laws that were other candidates they trusted. enacted were the laws on freedom of con- This was in “my” Politburo, in which I served science and religion, the freedom to leave the until 1989. But in the beginning of 1989 it began country, freedom of the press, and the law on to fall apart. There were schisms in society, from private property. This is what created a new en- resistance to perestroika by the conservatives to vironment for people to live in and made them splits among the reformers, and people began to think about the future. What began next was express serious doubts. The ship of state was list- the massive process of putting these new laws ing, and it became very difficult to steer. The into effect. But the more we went up against the attempted coup of 1991 occurred at the

14 / THE RUSSIAN CONSTITUTION AT FIFTEEN height of this schism and conflict, radically ac- do it, because they had the resources to do it. celerating the process of collapse and the disinte- They were not like the states that are being gration of the Soviet Union. formed now and are not viable. Those states The disintegration had terrible consequenc- had an elite, a culture, and an economy. But , including harm to the process of democrat- those economies were all intertwined as parts ic reform. Yes, we desperately needed to de- of the Soviet economy. centralize our reforms. If this had been done The democrats who ended up in power in more rapidly, the disintegration could have Russia were unable to implement reform, and been prevented. But this did not happen. We the situation continued to worsen. They were lost time. The main mistakes were: delays in working on the constitution during this time. reforming the Communist Party, delays in re- The first meetings on the drafting of the new forming the USSR as a union of different na- constitution were held in 1990, and in tions, problems with the market, and provid- 1991 the Soviet Union collapsed. Passions were ing for the needs of the population. These were running very high, and the culmination of all the most urgent issues, but we were trapped by these transitional processes was the confron- the situation we were in. tation between the executive branch and the Still, I am convinced that the Soviet Union , the first freely elected parlia- could have and should have been preserved. ment in Russian history. Incidentally, the reformers were not propos- We have come here today to assess the cur- ing anything new on this issue. If you read rent status of the democratic transition. People the Stalin and Brezhnev constitutions and the in the United States often ask me: “What is constitution adopted before the 1989 elections, the problem with democracy in your country? they all state that the union republics are sover- You should create democracy more quickly!” eign states with the right of self-determination And the American press constantly criticizes us up to and including the right of secession. We for problems in the development of democrat- did not add anything new to that. We simply ic processes, institutions, and so forth. These created opportunities to address constitutional criticisms are valid, of course. But my answer challenges that were embedded in the consti- here in the West is this: “Listen, you have been tution itself. But these processes required very building your democracy for 200 years. And if skillful implementation of policy, and that did you are so content with it, I would just say I not happen. think there are things to be less than content Those who took power rejected evolu- with, even though I have a high opinion of the tionary change and called for rapid, immedi- democratic achievements of your country. But ate change. As , my successor in you have been building it for 200 years. Why do Russia, said: “Be patient. We will be in decline you expect us to build it in 200 days? We know until November 1992, but then we will start you are Americans, you are very talented, but rising again, and in three or four years we will perhaps not quite as talented as you believe.” be one of the four most developed countries on We have come a long way. But as I have earth.” Of course, everyone understood that begun to say only recently, we are probably this was reckless talk, nothing more. But by not more than halfway through the democratic then the people were so tired of being disap- transition process. Now you will discuss the pointed that they did not think about what was agenda of this conference. This is all very im- in Yeltsin’s head. They thought: “Yeltsin is a portant to us, I should say. If for many of you tough guy ready to govern with a strong hand. these are theoretical issues, you will make com- Nothing would get in his way—everything parisons and express very precise and scholarly would get done.” opinions. But life is not like that for us, and we After the collapse of the Soviet Union, the will once again debate these issues with the process of building independent sovereign same passion as before. states in the post-Soviet environment began. One interesting outcome of this confer- This was a historic new process, but they could ence, which brings together both Russian and

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 15 American scholars, would be to determine, used to have single-member districts. This in- based on your discussions and analysis, what troduced some diversity and gave people the role the Constitution played in the events that opportunity to take the initiative at the local have brought us to where we are today. What level. We no longer have this. There were many successes were achieved, what caused the fail- provisions that reflected the democratic nature ures? Other important topics for discussion of the electoral system, but they have all been here are the Constitution and the functioning swept away. But recently, I have the impression of democratic institutions, and the exercise of that they have decided to create a one-party sovereign rights by the people and the protec- system in our country again. If this is the ul- tion of the rights of individuals. How can we timate goal, then what is the point of all the help these rights take root? How can we move window dressing of democracy? more quickly through the transition process My friends, I believe this is a fundamental toward its completion? And an issue that is issue for us. The modernization of our country being hotly debated in our country now: do must be based on two basic principles, includ- we need to amend the Constitution to achieve ing the active participation of the people. If we these goals? do not allow democracy to grow, if we do not Overall, senior government officials are allow people to participate in all this, it will happy with the powers the Constitution gives not work and we will face many hardships. For to the president and other branches of govern- this reason there are many who agree with me ment. And the parliament, which is dominated that we need an electoral system that allows not by , the party of the former presi- just picking people in to go to dent and current prime minister, is happy be- Moscow, but to truly choose their leaders. cause they have a monopoly on power, which This conference is a good opportunity to they amassed by using any and all means and exchange views and will be useful to the peo- resources. They have not only a super-majority ple in Russia who are with these is- required to adopt constitutional laws, but near- sues, because often a fresh set of eyes can see ly total control. But they are not worthy of such things more clearly. I hope you will come up power. This is my opinion, which I have stated with some good proposals. I do not know what in my article and in television interviews. they will be as they will be the outcome of your Improving the electoral system is another discussions here. So I will limit myself to these important topic. I say this at home and I say it recollections—and the rest is up to you. I wish here, because you cannot hide from the truth: it you success at the conference. Thank you. was a mistake to make the major changes to the Constitution in the past few years. There have Blair RUBLE been over twenty of them, I believe, am I right, I would like to thank Mikhail Sergeevich for Oleg? Of course, Oleg will be cautious. a wonderful presentation. I can think of many reasons why I should be thanking him for that Oleg RUMYANTSEV presentation, but I want to mention just four. The changes were not made by the amendment Over the past several weeks, a number of process. The Constitution was changed by people in Washington have asked me: Why have amending laws; the laws were changing. a conference about the Russian Constitution? Why does a constitution matter in Russia? I Mikhail GORBACHEV (cont.) would like to thank Mikhail Sergeevich for Indeed, I am talking about the electoral system. giving a far more eloquent response to that What amendments can we talk about? The sit- question than I have been able to provide. uation with political parties is simply awful. It I want to thank him for a personal reason as is extremely difficult to form a party, register well, and there are some people in this room it, and get it up and running. There are move- who will understand what I am about to say. As ments strong enough to form political parties, I heard him speak, I was reminded of a num- but they cannot even get them registered. We ber of wonderful human beings who were my

16 / THE RUSSIAN CONSTITUTION AT FIFTEEN mentors and his colleagues, people who taught organized the foundation and has promoted its for a number of years at the Juridical Faculty of mission. Many people set up foundations, but Moscow State University – Professors Mishin, few have produced such an effective institution Barabashev, the list goes on. As I heard Mikhail as has he. Sergeevich speak, I was reminded of what a spe- There are a couple of people that I need to cial institution the Juridical Faculty of Moscow thank as well. I am shortly going to turn the State University was. It produced not only him, platform over to the two people who really are but it produced a number of remarkable people; responsible for this meeting: William Pomeranz people whom we now forget at our peril. of the Kennan Institute, and Oleg Rumyantsev The third reason why I would like to thank of the Foundation for Constitutional Reforms. him is to remind a room of academics how I want to thank both Will and Oleg. This con- great the gap is between theory and practice; ference has been their idea. They have provided and how perilous it is to approach the world the energy and the intellectual power behind by imposing your own theoretical view onto a this enterprise. world which it does not quite fit. Over the last I also would like to thank the staff members several decades we sadly have had numerous who worked with them, because I think every- examples of that peril. body in a room like this in Washington under- And finally, I would like to thank Mikhail stands that it is staff work that really carries the Sergeevich on behalf of the Kennan Institute day. So I would like to thank the staff of the for the long and very productive cooperation his Kennan Institute and our other colleagues from foundation has had with our office in Moscow. the Wilson Center who have been cooperating His colleagues have been a joy to work with with us, as well as the staff at the International and I always understood that one reason why Institute of Global Development and the they are so delightful is the way in which he has Foundation for Constitutional Reforms.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 17 PANEL I Constitutional Guarantees of the Rule of Law State

Alexei AVTONOMOV sensus at the time it is adopted. It embodies the Good morning, ladies and gentlemen. First of principles that are agreed upon if not by ev- all, I would like to thank the Kennan Institute eryone, then by an absolute majority and even for the opportunity to speak with you, and I those who do not agree are generally willing would also like to thank all the organizers of to tolerate the new Constitution. We all un- the conference who have made it possible for derstand that in the modern world, a constitu- us to come here to speak to you and hear what tion creates the framework for the development you have to say. of the entire society. It is important. That is Much has already been said today about why why it was so important for us to have a new a conference on the fifteenth anniversary of the constitution. Russian Constitution is being held in the United If the people had rejected the new consti- States, and this really is an interesting question. tution in the 1993 referendum, I do not know When I was going through passport control at how we would have functioned. The old con- the airport, they asked me, “Well, why are you stitution had been abrogated by presidential coming here to the United States for that?” I order, but a new one had not been adopted yet. explained as well as I could. I think the passport For this reason, I believe many people who control officer was very satisfied with the an- thought the new Constitution still needed work swer I gave her. She seemed quite happy about voted for it nevertheless on the grounds that it it. And of course we are very happy that we is better to have even an imperfect constitution can come here to discuss the issues we are deal- than none at all. ing with. I think that even though we will be But even in those circumstances, many speaking mainly about Russia, these are issues important principles were enshrined in the we all share, so I think it will be interesting for Constitution, and this is what I would like to you as well. talk about today. First and foremost is the pro- We have heard here today that our Constitution vision proclaiming the rule of law in Russia. I was adopted under very difficult circumstanc- am not implying that Russia today is a country es and in a state of emergency. The draft had governed by the rule of law, but at least it was been worked on since 1990, and the reality was proclaimed. This is a very important develop- that the draft produced by the Constitutional ment in my view. Commission was probably the only draft that The whole history of the last 200 or 250 years we could have worked with, because everything throughout the world is the history of the ad- else that happened in 1993—the constitutional vancement of the rule of law. I will not dwell on convention and other things—were attempts to the theoretical aspects of this issue here. I would modify this draft by taking some things out and note only that the principle, of which the Russian putting other things in. phrase “pravovoe gosudarstvo” is a from However, we know that writing a constitu- the German or French, is called the “rule of law” tion takes more than five minutes. The drafting in English. And although the concept of the rule process requires an enormous effort, because a of law is not identical to the German Rechtsstaat, constitution ultimately reflects the social con- the French état de droit, or the Russian pravovoe

18 / THE RUSSIAN CONSTITUTION AT FIFTEEN gosudarstvo, they all reflect the basic idea that the was a member of various nongovernmental and law must be the foundation of the normal devel- nonprofit organizations, and I have spent my opment of a modern society. career as a legal academic. Since I wear these The rule of law is a principle on which ev- two hats—as a representative of NGOs and as a eryone agrees. The law is a sort of control de- lawyer with some experience in both theoreti- vice that establishes a framework, sets bound- cal and practical work—I think I am in a posi- aries, and creates an equal playing field for tion to analyze what happened. everyone. Therefore, the rule of law cannot Before 1993, the membership of the Supreme exist in a society with an official policy of in- Soviet was quite diverse. This continued after equality. We know that the rule of law is an 1993, but in early 1994 an interesting thing ideal goal toward which all countries that have happened; many members of parliament—both adopted it as a governing principle must strive. those who supported President Yeltsin and those But no society has or could achieve this goal in the opposition—expected Yeltsin to dissolve completely, because it is impossible to achieve the State Duma. This was because at that time, the ideal. Still, we cannot live without an ideal, the Duma as a whole, or at least a majority of its because it is the horizon toward which we are members, took a somewhat different position always striving. The horizon is always receding, on the issues than the president and his admin- but in order to move forward, we need this ho- istration. But fortunately, this did not occur. rizon, we need something to strive for. So from 1994 until the elections of 1999 What implications does the proclamation of (this period includes the first two sessions of the the rule of law have for Russia? In any country, State Duma, because its members were initially the effort to create the rule of law involves two elected for two-year terms and then for four- components. I am not sure which one is more year terms), the center of gravity of legislation important. The first is legislation or regulation, was in the State Duma. This was very impor- by which I mean the enactment of laws and tant and very beneficial, because the parliament other regulatory acts on the basis of a constitu- is always more accessible to the people, so its tion. The second is the application of the law. membership really is very diverse. I remember Any law, no matter how well it is drafted, will when we—academics, lawyers, economists, his- fail to promote the rule of law if it is applied torians, political scientists, and representatives incorrectly or contrary to the spirit of a consti- of nongovernmental organizations—would tes- tution. I would like to discuss these two aspects tify on proposed legislation before the working and the development of these two components groups chaired by members of parliament. This over the last 15 years. was very important for us, because the members At the beginning of this conference, we of parliament listened to us. Of course, since heard a lot about perestroika, democracy, and the president signs the laws, the presidential ad- social participation. We understand that if the ministration had input too. But over 70 percent law sets the boundaries for everyone, then it is of the laws that were enacted during this time important that as many people as possible, rep- originated in the State Duma. I also worked on resenting the most diverse interests, be involved some drafts that never became laws, but I will in the process of creating the laws. The public not go into the details. If you have questions, I interest does not mean that one private inter- will be happy to answer them. est prevails over all others. The public interest After the 1999 elections for the State Duma, is a consensus among all interests, in which all the situation began to change. The change was interest groups are treated equally. This is why I gradual at first. Then we had a presidential elec- have always believed it was so important to in- tion in 2000, and after that we seemed to start volve all political parties and social movements following the model of certain European coun- in the legislative process, so they will all have a tries, where much of the legislation is initiated stake in the adoption of any given law. by the administration. However, as this practice During the 1990s I had the opportunity to became common in our country, it was forgot- take part in the drafting of a number of laws. I ten that in Great Britain and other ­countries,

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 19 legislation can be sponsored by members of rection from the administration. You need to parliament serving in the administration, work through the presidential administration if not by the administration itself. Unlike in you can find a way to reach them. Of course, the United States, this dual role is possible the executive branch agencies are less accessible in some European countries, but we tend to than the parliament, so it is much harder to get forget that even in these European countries, access there than with a member of parliament. the parliament still has a role in the legislative Members of parliament hold weekly office drafting process. hours, and at one time this was a good way to Our situation is somewhat different. make contact with them. Legislation may be introduced by members of At that time laws were enacted more rapidly, parliament, of course, but also independently but the quality of these laws left much to be by the president and his cabinet members. desired. I will not go into the details, but there So the presidential administration gradually are many examples. The Land Code was ad- began to monopolize the legislative initiative. opted quickly, but it contains many provisions This was during the transition period from that are inconsistent with other laws, so it does 1999 through about 2003, when a fair vari- not work properly and we have a huge number ety of working groups were formed to work of problems with land and property in general. on legislation, and even though those groups Many provisions are vague and not well under- were controlled by the administration, the stood, but I do not have time here to discuss general public and academic experts had the the details. opportunity to give input. Let us move on to the second component of Many major reforms were enacted during the rule of law: the implementation of the laws. this period. For example, the working group on During the Soviet period, we had a constitu- judicial reform, chaired by Kozak, did tion, and we had a system of applying the law, some very important work in bringing together but these two things had nothing to do with representatives from all branches of government each other. They were like parallel universes. to draft legislation. I think some of the other Theoreticians would discuss the constitution, members of the panel will talk in more detail and the people implementing the law would about the law on the courts. But suffice it to say do their own thing. Of course, this changed that important laws were adopted, based on this after 1993. Now we have a Constitutional consensus process. Not every proposal passed, Court with which appeals may be filed. Still, but things do not always go as you hope they we cannot say that the lofty goals proclaimed will. The local government reform of 2003 is in our Constitution, or even in the laws en- also worth mentioning. I remember the intense acted pursuant to the Constitution, are fully debates that occurred. But the legislation was realized in practice. still shepherded through the drafting process in Many times, the general principles that ev- the State Duma. eryone believes in are implemented in our Unfortunately, sometime around 2003-2004, country in a very different way than in other the situation began to change. Today, when I countries. Here is one example. We had a prob- speak with people from various backgrounds— lem with the publication of judicial decisions the business community and NGOs—they tell that are made in open proceedings. Some judg- me bluntly: “The law is not helping us and we es released them for publication and some did do not know what to do about it.” I hear this not, and the issue arose whether we needed a particularly from small business owners. I tell law to address it. To be honest, I was very sur- them that they need to work through the presi- prised. I am familiar with the practice of courts dential administration. It is a waste of time to in Europe and many other countries, includ- approach the parliament with problems like ing the United States and Canada. If a decision this, because most of its members are in the is made in an open proceeding, it is generally majority, the ruling United Russia party, and available to the public. No special laws are nec- they normally do not do anything without di- essary to give the public access to these court

20 / THE RUSSIAN CONSTITUTION AT FIFTEEN documents. They have been considered public most still faced pressures that sometimes documents since the 19th century. Attorneys compromised their neutrality—both outside at- and any member of the public can have access tempts to influence their decisions and system- to these documents. But in our country it was atic biases in the work of courts. How and why not so simple. I was a member of the Supreme is this the case? Soviet’s working group to draft a law on this One reason is the persistence of informal topic. This is just one example. When the practices in the administration of justice that Deputy Chairman of the Supreme Soviet in- dilute the impact of institutional protections vited experts to provide comments on the draft and shape the conduct of judges. Another is law, I was one of them, and I told them: “Why the limits on the practical meaning of judicial do we need a law on this? We already have the reform set by cultural factors and by the lar- principle of openness of court proceedings. We ger political context. Today I will speak about have always proclaimed this principle, and it is both, explore potential remedies, and conclude enshrined in the Constitution. We just need to with observations about President Medvedev’s implement it!” They replied, “Yes, we tried, statements on court reform. but there was opposition within the Supreme Let us start with security of tenure as an ex- Court.” So the law was drafted, although it was ample of what can happen once informal prac- substantially modified later. tices are taken into account. The law states that There are many more examples when the after a three year probationary period judges way in which the law is implemented distorts who pass fresh scrutiny of their bureaucratic and the principles set forth in the Constitution. As political masters as well as their peers receive a lawyer, I am always saddened when this hap- appointments for life. But if those judges ever pens, because if the Constitution establishes seek promotion to a higher court or appoint- certain principles of law, those principles should ment to the post of chair or deputy chair of a be applied in real life. court, they must face the same careful scrutiny I will end there. I have described problems by the same set of players, including the heads more than I have proposed solutions. But as ac- of the relevant high court and officials in the ademics say, identifying the problem is an im- presidential administration. The result is that portant first step, even if it sometimes takes a making a successful career as a judge requires millennium to solve it. meeting the expectations of the figure who must write the crucial recommendation (the Peter SOLOMON chair of the court), as well as judges on higher I will speak about one part of the realization courts. Suppose that our judge is not ambitious. of the Russian Constitution of 1993, namely Even so, he must avoid offending the chair of the challenge of making judges in Russia in- his court because in reality that figure can en- dependent. One of the goals of the Russian gineer the judge’s dismissal. To be sure, a judi- Constitution of 1993 was to make courts and cial qualification commission must find in the judges independent so that they would deliver judge’s conduct grounds for dismissal, but the impartial judgments even in cases that were commissions are commonly under the thumb controversial or involved powerful players. of the corresponding chair of the regional Since the end of the Soviet era, Russia has put court, who in turn tends to respect the views of into place most of the institutional protections chairs of district courts, and the latter often find associated with judicial independence—includ- pretexts to dismiss judges whose real sin lies in ing security of tenure with removal only for lack of deference to the chair or to the informal cause upon approval of peers; decent funding of norms of conduct for judges, such as the avoid- the courts, including judicial salaries; and con- ance of acquittals. trol by judges of organizational support for the Moreover, the power of chairs of courts over courts. But as of 2009, observers of justice in their judges plays a vital part in the process of Russia, including its president, recognized that, outside influence on judges. Often, power- such institutional protections notwithstanding, ful politicians or business people approach the

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 21 chairs of courts for favours, which the latter feel decisions, and to resist inappropriate attempts compelled to provide in order to maintain good to influence them. working relations. Usually chairs can assign So, what steps might be taken to improve cases to judges known to be cooperative (al- the conduct and effectiveness of judges? though experiments with random case assign- During the Putin years some reformers - ment could temper this). For their part, most phasized measures to strengthen the account- judges acquiesce to the chair’s bidding. Failure ability of judges, often at the expense of their to do so could result in losing discretionary independence. For example, adding non judg- perks and in critical reference letters, if not also es to the judicial qualification commissions to disciplinary measures. was meant to break the alleged power of the Another informal practice that affects judi- judicial caste, which some observers saw as cial impartiality is the accusatory or prosecu- too prone to protect its members. Even now, torial bias, reflected in the avoidance of acquit- proposals to force judges to declare sources of tals and use of alternatives such as compromise income, their own and that of family mem- decisions and sending cases back to investiga- bers, and to keep diaries of their contacts with tors or procurators for new evidence. In prac- litigants are in the air. Making courts more tice judges in Russia avoid acquittals because transparent through the publication of judges’ they lead to negative evaluations of the judge’s decisions, a move that has support from Chief performance. Judges are also expected to avoid Justice of the Supreme Arbitrazh Court, overrules, a norm that encourages conform- strikes me as a measure that might improve ac- ity with the anticipated view of higher court countability in a productive way. judges. These expectations are built into the I am especially interested in measures that system of evaluating the performance of judg- would reduce the power of the chairs of courts es. (The rate of acquittal in judge only trials or improve the professionalism of judges in remains less than one percent; in contrast to Russia. Following a reform in 2002, chairs of the 15 percent at trials by jury). courts now serve for two six-year terms (plus The development of informal practices that the remainder of previous terms). While the undermine the formal protections of judges did need for reappointment leads to some account- not take place in a vacuum, but reflects con- ability of chairs, they remain bosses of their textual and cultural factors. One such factor is domains. I like the proposal made by jurists the attitudes of politicians and officials toward close to German Gref in 2006 to have chairs law and courts. Within public administration elected by their peers on the court (rather than in the Russian Federation the status of law re- appointed from above) and for terms of a mere mains murky, and regulations are based less three years. With the resulting rotation, chairs on the laws than on officials’ involvement in might turn into chief judges rather than bosses. networks of exchange. Policing includes much To be sure, chairs would have less management private activity by public police. Many officials experience, but this deficit could be remedied and politicians treat laws as instruments to serve by shifting more administrative functions to the interests of anyone who can mobilize them. court administrators, a position created only It is hardly necessary to give examples. seven years ago. The latter would need high- There are also problems with the mindsets status and pay to aid recruitment of skilled and culture of judges. In part because of the personel. Moreover, the leaders of the judiciary organization of the judiciary in a bureaucrat- would need to be convinced that gains in the ic hierarchy, in part because of deficiencies in independence of judges justified loss of power training, judges in Russia lack a strong sense on their part. of professional identity. They see themselves Finally, I am convinced that measures to en- more as functionaries than as professionals with hance judicial professionalism would help a lot. a distinct mission. Yet, judges who thought of Judges with a sense of pride and commitment themselves as professionals would be more like- to an ethos of judging will be less likely to mis- ly to care about the quality of reasoning in their behave than judges for whom handling trials is

22 / THE RUSSIAN CONSTITUTION AT FIFTEEN simply a job and approval of superiors more im- tor. But overall, the president’s program for the portant than standing in the profession. Judicial courts falls short of addressing most of the fun- professionalism will come from changes in re- damental issues that prevent judges in Russia cruitment (more jurists from full time day fac- from gaining true independence. There has ulties and unconventional work backgrounds), been no mention of measures to deprive chairs in training (a serious well designed program of their power, or for that matter of undercutting for new judges similar to the judges school in the power of the Supreme Court and Supreme Bordeaux, ), and from a transformation of Arbitrazh Court over their respective hierarch- the system of evaluating judges. Instead of statis- ies (similar initiatives are being discussed in the tical measures of performance, assessment should parliament of Ukraine). Moreover, a number be more skills-based (as in Germany) and put a of the most useful changes supported by the premium on how judges do their work rather president—pay raises for court staff, remaking than on the content of their decisions. Perhaps, the system of legal aid and creation of adminis- judgements could be more closely associated trative courts—will cost a lot of money. None with particular judges, so that especially good of these is likely to materialize until the price ones develop public profiles (like Anatolii Koni of oil returns to the three range and the in tsarist times). The personal dimension of ju- financial crisis in Russia comes to an end. dicial activity, while less prominent in Europe One can hope, however, that because of than in , helps to make leading the president’s personal interest, government judges into figures of attention and respect in spending on the courts will be maintained, both many Western countries, which in turn can lead regular budgets and the funds allocated through to public veneration and the promotion of role the targeted Program “The Development of the models for young judges. Court System, 2007-2011”. Perhaps, when it is As most of you know, starting last spring the time to plan the next targeted program, the fi- new president made strong nancial condition of Russia will have improved statements in favour of judicial reform, and this and some of the initiatives supported by the fall he continued along these lines, first in the president will receive funding. annual address to the parliament (the Poslanie) (To send comments or receive a copy of the and then in his appearance at the 7th Congress longer paper in either English or Russian, write of Judges, where he spoke twice and committed [email protected] ) himself to a series of reform initiatives. These included already planned measures to improve Oleg RUMYANTSEV the transparency and accessibility of courts Earlier today, Blair Ruble raised the issue of (such as more publication of decisions), and to why a conference on the Russian Constitution handle excessive delay in criminal cases to avoid is being held in Washington. I have two an- the wrath of the European Court of Human swers to this question. First, I think it is fortu- Rights in Strasbourg, along with reforms to nate that this event is happening at a time when the JPs [justice of the peace], and measures to we are pushing the “reset” button in Russian- humanize criminal law through decriminaliza- American relations. There are many areas in tion of lesser offenses and reduced sanctions for which we have common interests, including others. Medvedev also called for improvements not only the environment, Kyoto, the war on in the system of legal aid, improving the salaries terrorism, and other important issues. It seems of court staff, sorting out jurisdictional ambi- to me that constitutionalism is an area in which guities between the regular and arbitrazh [com- Russia and the U.S. have definitely been mov- mercial] courts, and coming to a decision about ing closer together in the last 20 years. the possible creation of administrative courts. For many years, at least 15 years, we have One of his initiatives connects to the reform been silent in our relationship on the topic of agenda that I am promoting, that is the need constitutionalism. Now it is time to begin talk- to recruit more judges from backgrounds other ing about these issues again, because interest- than court secretaries, prosecutor or investiga- ing things are happening not only in Russia,

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 23 but in the United States as well. In my opinion, men, governors, mayors, scholars, professors, you also have problems here involving the ex- and teachers. I met with a wide range of people, cessive concentration of power in the executive and it was extremely useful to me. For example, branch. Americans are saying this, and I will I had the opportunity to hear about how these talk about it too, so that we have a balanced fundamental principles work in real life from discussion. When travel abroad to Andrzej Rapaczynski of Columbia University, conferences, they usually feel a moral obliga- to whom George Soros introduced me. Here tion not to denigrate our own country or our is a warning he gave me: “I urge you not to own Constitution. This really is a moral obliga- create in Russia a presidential system based on tion, but this is a somewhat different situation. the American model,” said Mr. Rapaczynski. And this is the second reason why we are hold- “They love it in the United States, but it has ing this conference: 15 years after its adoption, not been successfully implemented anywhere the debate on the status of the Constitution has else in the world. It very often leads to dicta- begun in Russia. torship.” So that was one piece of interesting President Medvedev began this discussion and largely prophetic advice we received from in his message to the Federal Assembly on Andrzej Rapaczynski. We heard many differ- November 5, 2008. With his blessing, we have ent opinions during these discussions. kept the discussion going. President Medvedev In 1992, I met with my old friend James probably thought the discussion ended with the Billington in the U.S. Library of Congress, adoption of the amendments to the Constitution and Dr. Billington made one of his offices at that he proposed, but we feel differently. We the Library of Congress available to me, so believe that this is the time when the constitu- for a whole week I worked on the draft of tional discussion must continue. Further, since the constitution in an office right next to his. it is best for this discussion to happen in an in- In January 1993, during the inauguration of ternational forum, it is especially fortunate that President Clinton, I was here in the Senate, we are having this conference, where Russians along with Vladimir Lafitsky, one of our other and Americans can discuss our common issues. speakers here, for a conference on Russian con- Most of the Russian participants in this stitutionalism. We had good debates. As the conference also participated in the drafting of Constitutional Commission worked on the the Russian Constitution. Our small group in- draft, we received a large amount of very de- cludes a high concentration of these “founding tailed material from our American colleagues. fathers,” and I believe this gives us a certain There were proposals and opinions on the con- moral right to consider how the Constitution stitutional provisions governing the budget we gave birth to in the early 1990s is doing. process, federalism, and the vertical distribu- I am very grateful to Mikhail Gorbachev, tion of powers. It was all extremely interesting. who said quite correctly that all of this began Unfortunately, the recommendations on bud- with perestroika. There is no doubt that Mikhail geting authority did not make it into the final Gorbachev was the forerunner of the political Constitution, although they were in the draft reform that occurred. Perhaps we were a bit too proposed by the Constitutional Commission. critical back then of the “authoritarian modern- We see the result today in the total power of ization.” I am looking at Volkov and Sheinis, my the executive branch over the management of colleagues on the Constitutional Commission. public resources. Still, to get back to the topic of Russian- When I analyze the disputes we had in the American cooperation, I remember that we had early 1990s over the draft constitution and the a great many contacts 15 to 18 years ago. In problems we have today in putting the consti- August 1990, at the beginning of both my man- tutional principles into practice, I realize more agerial and creative effort in the Constitutional and more that the key factor in these conflicts Commission Working Group, I spent a month and the weak link that, if we had grasped it, in the United States, at the invitation of the U.S. could have resolved all of these conflicts, is the government, meeting with senators, congress- issue of popular sovereignty.

24 / THE RUSSIAN CONSTITUTION AT FIFTEEN The preamble and Articles 1 and 4 of the Yet, those who changed the Constitution Constitution mention state sovereignty, Article turned it into what it is today. For example 2 mentions individual sovereignty and the su- Sergey Shakhrai, my old colleague and, tradi- premacy of human rights and liberties, and tionally, my opponent going back to our days Article 3 mentions popular sovereignty. But in parliament, says that we (surprise!) have a it seems to me that the fictitious character of, self-evolving constitution. It is a document that or rather the transformation of popular sover- evolves by itself. In other words, in the past the eignty into a theoretical and practical fiction, president had a disproportionately powerful underlies certain problems that Russia has faced role, but now little remains of the strong pres- in trying to build the type of constitutional re- idency. They see this as a positive sign. That gime we all dreamed of. is what a self-evolving constitution is in their In essence, there were two ways forward. mind. I see this, however, as extremely danger- One way was labeled “romantic,” and those ous. I strongly opposed the disproportionate of us here who believed in it were called “ro- role of the president in the Constitution, but mantics” regardless of our age. It was the con- until recently at least you could say there was cept of sovereignty that was borrowed from one institution that was functioning as it was the 18th century, when popular sovereignty described in the Constitution. was the alternative to the sovereignty of the Time passed, and the strong political leader sovereign, i.e. the king. It was also believed who had served two terms as president became that it echoed the socialist approach, and that prime minister. Suddenly the independent role the socialist concept of “people’s power” was of the government is vastly enhanced in the inconsistent with the separation of powers constitutional structure, and the presidency is and so forth. The second way was to conceive relegated to a secondary role. This is my assess- of the constitution as a pragmatic weapon of ment. But they say that, supposedly, this was crisis management. The argument went like made possible by the mixed form of govern- this: Boris Yeltsin is a talented manager and ment created by the Constitution. he can bring Russia out of this crisis. So let us Well, even though I disagreed with the exag- give up a few of our ideals concerning popular gerated role of the presidency, I was still happy sovereignty, people power, and parliamentary to let the other side have this one victory. Now oversight, and this crisis manager will make it turns out that even this one institution does everything better. not function properly. This is a problem that we In my opinion, this was the moment when can talk about and criticize, but ultimately we genuine constitutionalism was replaced with have to figure out what to do about it. In my what I would call a cynical attitude toward opinion, we must pay very serious attention to the Constitution and toward the basic prin- the principle of popular sovereignty and resist ciples of the constitutional regime, which are attempts to bring about its devolution. still expressed in the text of a constitution. Mr. Gorbachev said it very well: perhaps So our Constitution is now becoming more this conference will generate some solutions. I and more of a manifesto, an expression of the would also like very much to believe in what society’s ideals. When the constitutional re- Alexei Avtonomov said: “The scholar’s task is gime is merely an ideal, a constitution is only to identify the problem.” Yes, but the field we a plan for the future. This is the unfortunate are working in is different. It is closely linked turn we have taken. Leonid Volkov will speak to political reality. Why shouldn’t we offer here; he was one of the first to argue that the some solutions or a plan of action for the fu- provisions of the Constitution must have di- ture? This could be one of the real results of rect application. From the very beginning, this conference. we argued in the Constitutional Commission Incidentally, we want to publish the results that the constitution must be a document that of the conference in our revived Constitutional is directly applied in reality, not merely a plan Bulletin. My colleagues from the early 1990s re- for our shining path toward the ideal. member that this was a [self-published]

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 25 journal in the parliament. The Constitutional out to be very inconvenient. Also, there was Commission published it as an informal bulle- the Govorukhin Commission investigating tin in the spirit of samizdat journalism. It was the events in , which was also very really great and very interesting. Boris Yeltsin inconvenient. So what happened after this? In signed an order, and we published the journal 2005, they enacted a new law on parliamen- on that very shaky legal basis. Now, after 15 tary investigations, which virtually eviscerated years, we have revived it. In December we pub- parliament’s investigative powers. One house lished international research on issues of im- of parliament can refuse to recognize an inves- plementing the Constitution, and some of the tigative committee formed by the other house people who took part in that research—Peter and can decline to approve the results of the Solomon, Will Pomeranz, and some others— investigation. are here today. We will definitely publish the The parliament has an Audit Committee, proceedings of this conference in Russian, and which exercises parliamentary oversight of gov- I hope the Kennan Institute will publish an ernment finance and spending, but it has now Occasional Paper on the conference. essentially delegated the appointment of the The question arises: do the people really chairman, members, and auditors of this com- want this popular sovereignty? Indeed, our mittee to the executive branch. The most re- work was spirited, but we did not take into ac- cent example was the amendments to the bud- the political culture and the state of mind get code, when the parliament relinquished its of our society at the time. We would not in our oversight authority over expenditures from the worst nightmare have imagined, when we cre- reserve fund. This happened, to be sure, during ated what became the legal foundation for the a financial and economic crisis. In other words, theory and practice of the great property grab, in a financial and economic crisis, popular sov- that the transition to a market economy and ereignty is for all practical purposes inoperative. democracy would go the way it did. And yet, It appears that first we had to conduct privatiza- behind our backs and behind the backs of the tion in a crisis, and now we have to bring the democrats who were drafting the constitution, country out of a financial and economic crisis this great property grab occurred. again. The result of this was amendment num- I am not even sure if this term translates ber one, proposed by Medvedev, to increase the into English; I hope the translators will come length of the president’s term. up with something. In any case, ever since, for Yesterday we visited the Newseum, the the next 15 years, first in the hands of Yeltsin, enormous museum commemorating the First then Putin, and perhaps Medvedev—although Amendment. We were amazed, and here is what I hope he might be different—the Constitution I thought about the First Amendment to the U.S. has served one legal and political function: to Constitution: the text of the U.S. Constitution guarantee the results of privatization. This is says nothing about human rights and liberties. how the Constitution was finally drafted in The purpose of the U.S. Constitution was to December 1993, to ensure that the results of structure the government. However, later they privatization would be inviolable, and for the decided that they needed to balance this situ- last 15 years it has served and continues to serve ation, so they adopted amendments on free- as a guarantor of the inviolability of the highly doms. Now, our first amendment allowed the dubious process of privatization. president to serve two six-year terms; it is an Responsible government is being destroyed amendment creating a 12-year presidency. I both in Russia and, in my view, to a certain do not know what kind of museum you could extent in the United States as well. Conducting build commemorating an amendment that cre- parliamentary investigations was very new in ates a 12-year presidency. Russia when we had committees investigat- This sharp distinction between our two sys- ing the events of September and October 1993. tems is the origin of the political and legal cul- There were two parliamentary commissions, ture that self-replicates endlessly in our country. and the results of their investigations turned It is not a political and legal culture of partici-

26 / THE RUSSIAN CONSTITUTION AT FIFTEEN pation and civic action. My fellow Russians think can be done to revive and rehabilitate the here remember Venichka Erofeev, who wrote principle of popular sovereignty. in his immortal novel Moscow-Petushki, “My tragedy lies in the fact that I expanded my zone Sergei PASHIN of privacy beyond all limit.” This is our col- It is a great honor for me to speak at the presti- lective tragedy today: We are ceasing to be a gious Kennan Institute forum and in the pres- society and becoming merely a biological com- ence of some of the authors of the Russian munity. Our zone of privacy has expanded so Constitution, including Oleg Rumyantsev. far that we have no sense of community beyond However, I am afraid that my presentation on consumption. judicial power and the constitutional regulation There are many possible conclusions to be of judicial power may be somewhat controver- made. Perhaps we need to find new forms of sial and provocative. I beg your forgiveness for oversight—who will guard the guardians? There this, with the understanding that a constitution is a new form of oversight that does not exist in may not only be smarter than its drafters, but the traditional understanding of constitutional- also more profound than its drafters. A con- ism. It is possible that expert councils could be- stitution can be the functional mechanism by come a prototype of this form. I am pleased that which the people exercise power, or it can be on February 10, President Medvedev appointed a shell that covers up the real gears and levers new members to the council to support the of power. development of civil society, and a significant The experience of the post-Soviet countries number of the members are dissidents. Perhaps demonstrates that many provisions of constitu- this council will serve as a new institution of tions are fictitious, at least those that are not oversight. However, we must not forget the tra- based on reforms or revolutions. However, ditional monitoring institutions, which are un- not all changes can be called reforms. Many fortunately quite underdeveloped. are often deforms, while others merely make I was going to criticize the United States here the power structure more complex. In this a little, but I am out of time. I was here on regard, it seems to me that the 1993 Russian January 20th, the day of the inauguration, and Constitution was more successful in codifying I was amazed at the heightened civic spirit I prior achievements of the judicial branch. For saw. Still, the questions I asked my American example, the Constitution confirmed the cre- colleagues remained unanswered. I asked, how ation of the Constitutional Court, which had could the president of the United States, and I been formed in 1991, and confirmed the cre- am not talking about President Obama here, ation of the separate system of business courts. refuse to let presidential advisers appear be- Still, I believe that the Constitution contains fore a congressional investigative committee, little potential for reform. Some provisions on and no one cared? How could the president of judicial procedure have not been implemented, the United States commence military opera- and their implementation is not even on the tions without the consent of two-thirds of the agenda. The implementation of others has been Senate? How did the president of the United very slow, difficult, and fraught with delays. States sign a status of forces agreement, but The very process of implementing some provi- this international agreement was not ratified? sions rendered them essentially null and void. I could cite many more examples of violations Let me give a few examples. It took ten of the Geneva Conventions, torture, and so years to implement the requirement to obtain forth, which were left to the discretion of the an arrest warrant from a judge. Moreover, there U.S. president. were plans to put off entrusting judges with this Does this indicate that this is a universal authority until 2007, but the Constitutional problem—this self-limitation of popular rep- Court intervened, and as a result the issuance resentatives? Is the endless expansion of ex- of arrest warrants by courts became a reality ten ecutive power a universal problem? I hope years after the adoption of the constitutional our American colleagues will tell us what they provision requiring it.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 27 Jury trials were introduced in Russia in Everyone says we must reduce the prison July 1993, i.e. before the adoption of the population, which is extraordinarily large in Constitution. The constitutions of the Soviet Russia—about 900,000 people are serving time Union and the RSFSR also provided for trial or in pre-trial detention. Since judicial reform by jury in November 1991. In 1993, before the began with the adoption of the Constitution, new constitution, trial by jury was introduced our prison population has nearly doubled. in nine regions. It has bogged down since then. Amnesty, liberalization of laws, and decrimi- In 1999, the Russian Constitutional Court re- nalization has only a temporary effect. Justice minded the legislature that it was time to im- Radchenko, the First Deputy Chief Justice plement the constitutional provision on trial of the Supreme Court, said last year as he re- by jury. The legislators mulled this over until signed from that high office that since the new the beginning of the third millennium and fi- Constitution was adopted, one-fourth of the nally began to gradually introduce jury trials in adult male population of Russia has been con- Russia. However, according to the plan, trial victed of a crime. One of my colleagues on the by jury will not be introduced in the Chechen bench joked cynically that they will soon be Republic until 2010. It was scheduled for 2007, giving out “Not Convicted” medals. but was delayed by three years. At the end of It is interesting that judges grant nine out last year, trial by jury in Russia was hanging of every ten requests for arrest warrants. This by a thread. On December 30, 2008, President means that prosecutors are able to make an ar- Medvedev signed a new law, just before the rest in nine out of ten cases. Once a person has New Year’s celebration, that limited the au- been arrested, the prosecutor—or rather, the thority of the jury. In particular, three months investigators and the prosecutors—are granted ago, nine items were removed from the list of extensions of the period of detention in 98 per- criminal offenses to be tried by jury. cent of cases. Article 32 of the Constitution provides for Judges are removed from office—this hap- the right of the public to participate in the ad- pened, for example, with judges in ministration of justice. However, in the courts and Moscow in 2006—for “failure to grant of general jurisdiction, virtually no civil cas- a motion to extend the period of detention.” es—and there have been nine million such The Supreme Court has upheld the removal cases—have been tried by a jury. Back in Soviet of judges from office on these grounds. Judge times, all such cases were tried by a panel in- Melikov in Moscow was removed from office cluding people’s assessors. There have been just on the slanderous grounds of “unusual leniency over 1.1 million criminal cases in the Russian in certain decisions by the judge and persistence Federation, and of those only six hundred have in explaining to the parties their right to me- been jury trials, not to mention the five and a diation.” I am quoting the official document. half million cases of administrative violations, The Supreme Court explained that, in deciding in which the public does not participate at all. whether to grant arrest warrants, judges should Thus, the right of the public to participate in verify the grounds for the charge but not inquire the administration of justice has been imple- into the issue of guilt. The result is very odd mented in only six hundred cases out of fifteen decisions, including decisions of the Supreme million cases heard by the courts of general Court. Prisoners in Yakutia complained that jurisdiction. they were held for over a year even though they Russia’s legal system has not lived up to our had alibis and no evidence of their guilt had expectations. In , the biggest problem been found. The Supreme Court decided that is the execution of judicial decisions. In 2006, “the arguments by the accused regarding lack the government announced that it planned to of evidence of their guilt and their alibis are not increase the rate of execution of judicial deci- relevant to the appellate court’s review of the sions from 52 percent to 80 percent and that grounds for extending the time of detention.” this will happen no earlier than 2011. Perhaps This reminds me of a phrase I have heard in then we will get somewhere. America: “Innocence is not a defense.”

28 / THE RUSSIAN CONSTITUTION AT FIFTEEN The same applies to the frustration over the was: “The state is the Party.”). But I believe freedom from torture. In 2004, the Committee something different happened. The Communist Against Torture gave Russia a very negative rat- Party sprouted trade unions, a parliament, and ing, noting that judges essentially ignore evidence courts like its tentacles, like its organs. Then of torture and harsh treatment presented by de- the CPSU left the scene. It lost power and left fendants. Opinion polls conducted a year later in- the political stage, but its tentacles remained, dicated that over 50 percent of respondents think including, of course, the judicial system. These either they or someone among their friends or tentacles tend to look for new masters to serve, relatives might need protection from torture. Yet so “telephone law” is not so much an external apparently they will not be able to count on the encroachment on judicial power—it is what the courts to protect them from torture. judicial system wants. When we talk about trial by jury, we must I have less than a minute left, so I would like understand that the Russian Supreme Court to mention one example of the procedures used prohibits a party from raising the issue of tor- in the judicial system. In December of 2008, just ture in the presence of the jury. Torture is con- three months ago, the Supreme Court affirmed sidered a legal issue beyond the jury’s authority. the removal of Judge Guseva from , If a defendant even hints that he was tortured, Central District from the bench. What was this is grounds to overturn a jury verdict of not Judge Guseva’s offense? The chief judge issued guilty. For example, one not guilty verdict was an order requiring all judges to make daily re- overturned because the defendant said that dur- ports to him on cases when defendants are held ing his interrogation we “would have admit- in detention and on civil cases brought by in- ted to crucifying Jesus Christ.” Another verdict dividuals against a government agency, in order of not guilty was overturned on the grounds to ensure that the procedural and substantive that the attorney made subjective comments rules of law are applied correctly. Judge Guseva on the evidence presented by the prosecution. refused to report to the chief judge on her cases Apparently, an attorney is required to make and receive his direction, on the grounds that objective comments and support the prosecu- she is independent. She was then removed from tion. The language used in the decision over- office. She appealed to the Supreme Court, turning the not guilty verdict was priceless: which affirmed her removal from office. “The attorney influenced the jurors’ opinion.” A constitution is sometimes compared to a Incidentally, this is not another decision that map guiding the way to build a regime. But will disappear into the archives. This is a pub- if you are in Solntsevo (a suburb of Moscow), lished judicial decision, available to everyone what use is to you a map of the moon? I think for review and guidance. that before we can demand or achieve compli- What is preventing the judicial system from ance with the Constitution, we should probably becoming an effective mechanism for protect- understand who it is that we are demanding ing constitutional rights and acquiring true compliance from. If it is the tentacle of an oc- judicial power? I think Professor Solomon topus, it would be rather odd to count on our demonstrated this quite clearly in his presenta- demands being met. Our main task is to trans- tion. In 1992, there was a famous case in the form the tentacle into a true government body. Constitutional Court, Yeltsin v. Communist Party Perhaps then something will change. Without of the Soviet Union. The issue in the case was reform, the Constitution will have no effect. whether the Communist Party was a consti- tutional organization. During this case, docu- Alexei TROCHEV ments were presented that clearly demonstrated I would like to speak about the question of what the Soviet judicial system was like. The constitutional guarantees by looking at the president’s team—Shakhrai, who has been men- Constitutional Court and by looking at the re- tioned here, along with Burbulis, Kotenkov, actions of powerful players to the decisions of and Makarov—argued that the Communist this Court. This Court is a 17-year-old tribu- Party had usurped the state (the party’s slogan nal. It has a full-blown power of judicial review

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 29 and its judges are never tired of telling every- End of quote. But I am not sure that he would one that they are the guardians of the Russian be successful, as the past has shown us. Constitution. This Court had a difficult infan- I am not going to argue that Russian presi- cy. It was created before the current Russian dents and the Constitutional Court have some Constitution, but then got quickly involved in kind of romantic feelings, which is the subject the clashes between President Yeltsin and the for another conference. The question for me is parliament. In the fall of 1993, when Boris why do the presidents and the Constitutional Yeltsin dismantled the parliament, this Court Court need each other? Why do they meet on was nearly abolished, because it declared the a regular basis and air all these complaints? The dissolution of parliament non-constitutional Court needs support of the president, because and gave the green light to the parliament to he is the most powerful player in the game of impeach President Yeltsin. Russian politics who can help the court imple- Yeltsin kept the Court in the 1993 ment its judgments. Former Chief Justice Baglai Constitution only because he was persuaded by was very frank about this ten years ago. He said his allies that he would be able to appoint more that the president was the only trump card in judges to the Court and that the Court would the hands of the Russian Constitutional Court never be able to launch any threat or any attack when the court is playing the implementation on the presidency. Yeltsin did go on to pack the game. Vladimir Putin, of course, and Dmitry Court more or less successfully. So whether or Medvedev are even more powerful now, so the not you like the Constitutional Court decisions, Court needs presidents even more today. it is useful to look at the challenges this tribu- In his first year of his presidency Vladimir nal faces in implementing its decisions in order Putin clearly needed the Constitutional Court to realize and to think about the challenges of in his efforts to reduce the power of regional implementing the Russian Constitution. governors and oligarchs. “The dictatorship of I would like to ask you a question: what was law,” the slogan that Putin used to fight against Vladimir Putin doing around Valentine’s Day in the regional leaders, meant the supremacy of 2001? Answer: he met with the Constitutional , which was supposed to be made real Court judges, who complained to him that the by the judiciary. This is why he wanted courts other branches of government did not carry out to become stronger and to ensure judicial de- the decisions of their court. The judges gave cisions were really enforced and implemented. Putin a list of 10 judgments, which the Russian However, as Putin’s popularity grew and his parliament ignored, either refusing to amend power became more concentrated, he needed the laws found unconstitutional or adopt new the courts less and less. And today the presi- laws as ordered by the Constitutional Court. dent and especially the prime minister need the President Putin agreed that he had to fix this Constitutional Court still less, because they problem of implementation, and he charged both have sufficient power, popularity, and au- Dmitry Medvedev, then-Deputy Chief of Staff thority. Thus, once those in power in Russia no of his administration, with fixing this problem. longer needed the legitimacy conveyed by the Here is another question: what did Dmitry Constitutional Court, they stopped paying at- Medvedev do on Valentine’s Day this year? tention to the Court’s judgments. Answer: he met with Valerii Zorkin, Chief However poorly the mechanism of imple- Justice of the Constitutional Court, and again menting those decisions worked in the past, they discussed the problem of non-implementa- they have now stopped working almost entirely. tion of Constitutional Court decisions. At that In 2001, there were 10 judgments that were not meeting, Zorkin handed to President Medvedev implemented. In 2009, we now have 30 such a list of 30 judgments that were being ignored judgments. With Russia finding itself in a deep by the Russian parliament. To his credit, economic crisis, the need for the Court may President Medvedev was honest and he admit- rise as the powerful players lose their popular- ted, quote: “We need to set up a mechanism for ity, their money, and their coercive capacity. implementing Constitutional Court decisions.” For example, the Constitutional Court is set to

30 / THE RUSSIAN CONSTITUTION AT FIFTEEN hear a complaint by Gazprom, the natural gas acquittal, and it authorizes courts to impose monopoly and one of the most powerful busi- tougher sentences. nesses in Russia. Gazprom claims that the law If the Constitution in some way limits the on joint-stock companies violates its constitu- power of the siloviki, then their preference is tional right to property and violates the con- that the courts should not stand in their way. stitutional ban against arbitrary restrictions of A perfect example is the persistence of propiska, this right. Why couldn’t Gazprom simply lobby or resident’s permit, which is still very impor- the parliament to change this law? Why has tant in Russian life. Without a propiska, you are Gazprom gone instead to the Constitutional nobody in Russia, not even a citizen. Very few Court? Because it believes that with the Court people in the government have an interest in on its side its lobbying will be more successful reducing its importance. Yet the Constitutional and more effective. Court has issued decisions saying that the prop- My central argument is that the effectiveness iska should be given less importance as a docu- of constitutional guarantees largely depends on ment. Those decisions have been in vain. Last the balance of power in the game of Russian year, the Court ruled that it was constitution- politics. This balance of power determines if ally acceptable for people to register as residing the decisions of the Constitutional Court are in their . Yet government officials at all obeyed or not. So far, eight years of economic levels—federal, regional, local—say it would be growth and building the “vertical of power” too complicated and unworkable to do so. have failed to strengthen constitutional guar- Observers of the Court and human rights ac- antees and to strengthen the Constitutional tivists know that Russia’s Constitutional Court Court as an institution. In my book, I explain is a cautious tribunal. It focuses on individual how the decisions of the Constitutional Court rights instead of the core, heavy-weight po- lacked binding force under Yeltsin and under litical issues. It does not interfere with the key Putin. The plain point here is that executive policies of the ruling regime. Yet it still suffers orders reign supreme above legislation, above from sabotage from the government, the legis- the Constitution, and above the decisions of lature, and even the rest of the judicial system. the Constitutional Court. Sometimes these ex- Why? Because the Court has very few allies. ecutive orders are published, sometimes they The cost of non-compliance with Constitutional are secret. The decisions of the Constitutional Court decisions is zero, while the cost of com- Court acquire binding force only after power- pliance with the Constitutional Court is much ful politicians choose to make them binding. higher. So far nobody in the government, the The prevalence of a business-oriented, mili- legislature, or the judiciary have faced any real tant cadre in today’s ruling elite only strength- negative consequences for defying, or ignoring, ens this balance of power thinking. People or disobeying the Constitutional Court. there think: who against whom? Politics is What about benefits of complying? Simply a zero-sum again, and they have to win it. If preaching to these powerful interests that it is constitutional guarantees help the siloviki, help desirable to live under the rule of law and ex- the militants, then they will use them and turn ercise self-restraint is not sufficient. You have to Constitutional Court or other courts. There to look at the real benefits of complying with are examples. The YUKOS case involved all judgments, and they are not very high. To the branches of the judicial system. Also, the rul- siloviki and businessmen in power, compliance ing elite do not like acquittals in the criminal brings fewer benefits than they can achieve justice system, however rarely they occur. So, through brutal force or selective prosecution they decide that acquittals are to be reversed by through the legal system. To the rest of judicial an appellate court. A few days ago, President system, the Constitutional Court is a thorn in its Medvedev signed an amendment to the crimi- eye—it imposes way more obligations on judg- nal procedure code that basically authorizes es than do regular or commercial courts. The double-jeopardy. It allows courts to retry a chief justice of the Supreme Arbitrazh Court, person on the same charges and then reverse Anton Ivanov, is a very good friend of Dmitry

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 31 Medvedev and a current leader of judicial re- below their trust in Vladimir Putin, Dmitry form. He is openly telling the Constitutional Medvedev, the army, the church, the federal Court to stop reviewing and stop interpreting cabinet, the regional governments, and even the tax code, stop interpreting the civil code, tycoons. Russians also trust it far less than and stop reviewing appeals against decisions of the European Court of Human Rights, even commercial courts. though Russians do not know what that court For the executive branch of the govern- does either. But it does rate higher in trust than ment, Constitutional Court decisions are sim- the private sector, political parties, newspapers, ply a headache. They complicate governing, police, and the rest of the judicial system. potentially disrupt business relationships and Not surprisingly, when there is an attack exchange networks with the private sector, re- on the Court, as happened several times under quire a great deal of external accountability, and Putin’s presidency, nobody except the constitu- damage the “vertical of power” by demanding tional judges defended the tribunal. What hap- respect for constitutional rights. The Court says pened in last week is unimaginable in that instead of being loyal to your superiors, Russia. People will not go to the streets and de- you have to be loyal to the Constitution, which fend their judges. is so far away and so abstract that it simply does Of course part of the blame lies on the not work. Constitutional Court itself. Judges have to ad- To the business community, the Constitutional vertise the work of their court and the useful- Court represents one of many possible ways to ness of their court to the real people, to people protect their interests, but it is not the most effec- on the ground. tive one. This is because the Court cannot really In sum, the Constitutional Court has few constrain the state. allies in Russia, and these allies seem to care Neither are the Constitutional Court’s de- about the Court only when they need a favor- cisions a priority for legislators. The ruling able judgment. Russia has an instrumental ap- United Russia party has its patrons in the legis- proach to the law and courts and it is not new: lature, in the prime minister, and in the presi- the tsarist and the Soviet governments actively dential administration. It is willing to obey the used law and courts to reform their societies. Constitutional Court only after the Neither is it unique to Russia, because many orders it to. The legislators cannot even play countries around the world do the same thing. symbolic politics by complying with the The tells all developing countries Constitutional Court’s decisions, because regu- that the rule of law and independent judiciary lar voters simply have no knowledge of what will bring you economic benefits, prosperity, the Court does. and a happy life. The point here is that con- Three years ago, 95 percent of Russians sur- stitutional guarantees become real when the veyed by the Russian Public Opinion Research powerful interests want them to be real. But for Center could not name even a single case de- us, for scholars, and for all those people on the cided by the Constitutional Court. At that ground, constitutional guarantees will become time, it was a 15-year-old tribunal, but no- real only when people in the streets begin to body knew any of its decisions. Two-thirds of believe that the Constitution delivers some- those surveyed reported that they knew noth- thing real, something tangible, and something ing at all about this tribunal. Three months of real benefit. After all, we know that the rule ago, the conducted a nation- of law should be about protecting the interests wide poll and again found that 60 percent of of the weak and disadvantaged groups of people Russians knew nothing or very little about the from the whims of the powerful. Constitutional Court. The demand for this is there. All pub- Yet throughout the decade, about a quar- lic opinion polls in Russia show that people ter of Russians reported that they trusted the like judicial independence, they like the rule Court. So they do not know what the Court of law, they like individual’s rights to be pro- is up to, but trust it. But this level of trust is tected, and they want the government to be

32 / THE RUSSIAN CONSTITUTION AT FIFTEEN accountable. But the courts do not deliver all loss some of the greatest brands in this country, these things. The demand is there, and it is up or in Britain, or France, or Russia. to us scholars to convince the politicians that That is why, coming back to the point, that somehow they can actually benefit from obey- the Institute is a good start. We will meet soon, ing the Constitution. I hope, in May, in , Ukraine. We have a good idea of actually bringing some of the Commentary people who 20 years ago participated in the Supreme Soviet to listen to what they can say Alexander LEBEDEV about the 20 years that have passed. We hope My special thanks to Kennan Institute for President Gorbachev would join us. hosting this conference. I am very glad that We also hope to launch a new President Gorbachev managed to come and Initiative, and bring to Crimea, Ukraine in- talk to you. I think Oleg Rumyantsev is doing ternational research centers, academics, and a very good job at the International Institute experts to talk about any issue on earth which of Global Development. He helped organize it is of interest to us—from the new regulation all nearly a year ago, prodicing a white paper of the capital markets (which is now going on the Russian Constitution with 27 experts to be discussed at the meeting of the in from all over the world. It is a good start, really. London); to a master-class in the Chekhov The point of my Institute is a very simple one: theater with Kevin Spacey, John Malkovich, I think we all are challenged internationally by Tom Stoppard, and Kate Blanchet; to issues various new developments in the financial mar- related to the new European seucurity initia- kets, which are not coping lately with the new tives, which were partially, by the way, ini- acute problems that have emerged. Actually, it tiated by President Medvedev and not very requires global regulation. much welcomed by everyone yet. I think it I think we should consider answers to the provides a good basis to try and transform challenges of globalization by cooperating Crimea from the old Yalta, which separated much more beyond some simple bureaucratic Europe into two military blocks, into a new umbrella, which would not, I think, be effi- bridge, by enlisting different minds to try cient enough to counter the challenges we are and find answers to the most acute problems facing. It is the same everywhere, be it in sci- that face the global community. ence, research, even media. I think one of the I hope you will support us and welcome us. points of my making this very silly decision Hopefully we will see some of you in Ukraine to buy a newspaper in London is that I think in May or , and the Yalta Initiative results that the more authoritarian tendencies of glob- in a sort of a permanent center like Davos, but al bureaucratic regulation should be answered one dedicated to issues other than the economy by more global attitudes in media. I mean we (which will also be covered, of course). Thank should be doing something about stopping the you very much.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 33 PANEL II Problems of Political-Legal Culture and Civil Society

Viktor SHEINIS wave of post-war democratization. This fact First of all, I would like to thank the Kennan has been recognized by international experts Institute for its kind invitation and the oppor- and the Venice Commission. However, the tunity to visit the United States again and spend government system established in several sub- time with my colleagues, especially some of my sequent chapters of the Constitution largely old American friends. Several of them are here contradicts the democratic principles enshrined today. I have very little time, so I will try to in the first two chapters of the Constitution. give a concise summary of what would ordi- In his speech, Oleg Rumyantsev spoke about narily take a long academic discussion. Professor Rapaczynski’s recommendations to The first Russian constitution was adopted weaken presidential power and increase the in 1906. Two or three years ago we celebrated power of parliament. I should say that the draft- the centennial of a constitution in Russia. Over ers of the Russian Constitution did not take this time the constitution has been replaced five these recommendations seriously enough. As a times, so we now have our sixth constitution. group, these drafters were quite democratically A simple arithmetic calculation shows that in inclined, and if they had realized where this Russia a constitution lasts for 17 years on aver- system of distributing power would lead, they age. Our current Constitution is approaching would probably have tried to create a greater its 16th birthday, so it is about average in age. reserve of strength on the side of the individual As you know, it was adopted in extraordinary or the citizen, on the side of nongovernmental circumstances. Constitutions adopted in such organizations, and, ultimately, on the side of circumstances rarely endure very long. Still, our the parliament. Constitution exists, and the first amendments to Still, even if we had foreseen all the conse- it were adopted several months ago. Speaking quences of the exaggerated personal power of not only as one of its drafters but as a citizen of the president, if we had realized how weak the my country, I hope that this Constitution en- guarantees of democracy are, it would probably joys a long life. have been impossible to do anything about it As I said, the Constitution was adopted given the specific circumstances in which we under extraordinary circumstances. This were working. The trap we fell into was that is reflected in its text. The Constitution is the obvious elements of an authoritarian re- profoundly contradictory. I could speak at gime were seen at that time not as an evil, great length about the contradictions in the but as a necessary instrument of change. The Constitution, but I will outline only the most Constitution of 1993 created a legal framework important ones. The main contradiction con- in which it was possible to move in opposite di- sists in the fact that the first two chapters of rections: either in the direction of strengthening the Constitution, entitled “Basic Principles and implementing the progressive, democratic of the Constitutional Regime” and “Rights provisions; or in the direction of strengthening and Liberties of Individuals and Citizens” are the government, which was weak at that time, of very high quality, on the level, say, of the by entrenching the isolation of presidential and European constitutions adopted in the second executive power from public accountability.

34 / THE RUSSIAN CONSTITUTION AT FIFTEEN This could be done in a two-fold way. One that a long series of counter-reforms began. way was the Constitution itself could have Mikhail Gorbachev spoke at this conference. been amended or the laws could have been Like everyone here, or at least the majority of amended without touching the text of the us, I have the greatest respect, and even a feeling Constitution. The other option way was to of profound affection, for Mikhail Sergeevich widen the gap between written law and the Gorbachev. I consider what he did to be a great application of law, and between the formal historical achievement. At the same time, I will constitution and the real constitution. These permit myself to disagree with him on one were the two opposing directions. statement he made here. Mikhail Sergeevich In the 1990s, there was a proposal for dem- worded his thought very carefully. “We,” he ocratic reform of the Constitution. This pro- said, “are moving in the direction of democ- posal took the form of numerous theoretical racy. But it took you Americans 200 years to publications and specific legal proposals con- get there. Be patient. We will also get there.” tained in draft legislation that was introduced Indeed, I am convinced—based on my own in parliament by the party, which was natural optimism—that we will get there in 200 still represented in parliament at that time. I years. However, given the things that are hap- had the honor of belonging to this democrat- pening now before our eyes, I must say that the ic faction. The proposed amendments would vector has fundamentally changed. When Mr. have given parliament back its oversight func- Gorbachev was in office, and for the first few tions, which had been taken away, and they years after perestroika, the country was moving would have increased the Duma’s role in ap- in the direction of expanding democracy, cre- pointing members of the cabinet and its abil- ating the institutions of civil society, and build- ity to influence their actions. Today the Duma ing a true market economy. Of course there can only dissolve the cabinet, but only in cer- were many delays, mistakes, and even crimes. tain circumstances and at a certain time. It But that is not what I am talking about. What also does so at the risk of a effect, I am talking about is that after 2000, and par- because in response to a vote of no confidence, ticularly after 2003-2004, things began moving the president can dissolve the Duma. back in the opposite direction. At one time there seemed to be a window I will put it bluntly: the country was of opportunity to amend the Constitution. In thrown back, at least in our political life, to 1998-1999 not only the democratic factions where we were before perestroika, or in the best but the government itself, led at that time by case where we were at the very beginning of Evgenii Primakov, was working for its own perestroika. The residue of this process is not reasons to increase the government’s power vis- the stagnant Communist nomenklatura with à-vis the president. Amendments were drafted, its familiar ideological roots in Marxism- but the window of opportunity slammed shut (although it had little or nothing right away. After 2000, efforts to move in the to do with , to say nothing of Marx). opposite direction began to emerge. First, a gap Instead, we have a new, reformed political opened between our political and public life and elite, which has tamed the business commu- the Constitution. Reality was contrary to the nity and restored the eternal curse of Russia: spirit and even the letter of the Constitution. the bond between power and property. We saw this back in the 1990s. After 2000, es- Before 2008-2009, the democrats framed pecially after the tragedies of Nord-Ost and their task this way: Dismantle the anti-con- and during President Putin’s second stitutional regime and the so-called “man- term, there was a sweeping revision of the laws aged democracy,” i.e. everything that was on political parties, elections, nongovernmental done in violation of the spirit and letter of the organizations, and numerous other institutions Constitution. After that, the goal was to move of civil society. This has already been men- towards the democratic experiment, primarily tioned and illustrated by vivid examples here, by reforming the laws. We said that trying to so I will not repeat it all. It is sufficient to say amend the Constitution would be opening a

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 35 Pandora’s box, as there would be limitless op- slightly modified and applied to a narrower geo- portunities to improve the Constitution, but graphic area. The was that also to make it even worse. The amendments the Soviet Union would do anything to defend that have recently been adopted essentially its border as set by Yalta and Potsdam confer- mean, in the specific circumstances Russia is ences. The current Russian leadership seems to in today, that the government will not have to believe that Russia has the right to determine meet with the public as frequently and will not the fate of independent states that sprung up on be as accountable to its constituents. Our elec- the post-Soviet territory. tions have largely become a farce, as Mikhail Based on all this, I am rather skeptical about Gorbachev also noted, and this is a step back. the possibility that we can come up with ra- My time is almost up, so I will conclude. My tional solutions here that will have an effect final thought is this: We are in an economic on the decision-makers. The circle of these crisis that no one predicted. The economic cri- people in Russia today is extremely narrow. sis confirms Wallerstein’s view that we live in This does not mean we should not come up an unpredictable world. After the world, par- with ideas. Proposals of democratic change are ticularly Russia, emerges from the crisis, it will needed either way. We need proposals for re- be different than it was before. If we stay the alistic and democratic amendments that would political course that the government is follow- eventually correct the lopsided structure of ing now, there can be only one outcome: before the Constitution, even though, in the best the crisis Russia was a country of yesterday in case scenario, these proposals would be a plan comparison with the West. If Russia continues for the distant future. Still, we need this plan, on its present course, then after the crisis and because one of the misfortunes that befell Mr. the structural changes that will occur [Russia] Gorbachev’s perestroika was that the public did will be a country of yesteryear. not know what it wanted, what it should want, Russia faces a very complex problem: the or what their future should be. This is also an problem of modernization. This problem has effort to improve and grow institutions of civil many facets, but I would emphasize two basic society that are independent of the authorities issues. The first is liberalization, which means and that are germinating in Russia today de- breaking the bond between power and prop- spite a very difficult environment. erty and creating a regime of competitive po- litical democracy in which a governing party Eugene HUSKEY could lose an election and peacefully transfer Thank you very much, Mr. Chairman. It is power to the opposition. The second issue is a particular honor for those of us who study true integration into the community of demo- Russian law from the outside to be on the cratic nations. No country in the second half same stage with the “founding fathers” of the of the 20th century has undergone a compre- Russian Constitution. It really is a great privi- hensive and successful modernization in op- lege. Thirty years ago I arrived at the law facul- position to the West. The countries that have ty of the Moscow State University to do disser- succeeded in entering the path of moderniza- tation research, and when I told my dissertation tion have either joined that system or are in supervisor the topic of my dissertation he was the orbit of the West. speechless. It was the history of the Russian and Incidentally, despite the nice words of Soviet bar—the advokatura. He would have un- Dmitry Medvedev to the effect that freedom derstood it if it was the procuracy, or the courts, is better than the absence of freedom (and who or the MVD, but the advokatura… Unlike the could argue with that?) a different policy has tsarist era with its magisterial history of the been pursued and intensified in recent months. Russian bar by Gessen and Gernet [I.V. Gessen It is most alarming aspect is the growing ag- and M.N. Gernet, The Bar, The Society, and the gressiveness in foreign policy, which is imple- State, 1864-1914.], the Soviet Union produced mented under the flag of . only a handful of books on the bar and most of This is essentially the Brezhnev Doctrine, only them were thin volumes by legal practitioners.

36 / THE RUSSIAN CONSTITUTION AT FIFTEEN In every respect the advokatura was a stepchild persons should be equal before the law and the of the Soviet legal order. court, if the court is controlled by persons who I start out with this personal vignette be- throughout their careers have looked at justice cause it tells us how far Russian legal develop- through a single lens. ment has come in the last three decades. The bar In this regard, the comments earlier this is now a subject of serious academic research. year by the Ministry of Justice of Russia were There are many times more advocates today— encouraging. In a meeting with human rights whether for good or ill—than there were in activists, Minister Konovalov said that he fa- 1979 or, indeed, in 1991. Advocates now enjoy vors the inclusion of advocates and even human more procedural rights, as you know, includ- rights activists on the bench, because it would, ing participation in jury trials, and the bar has in his words, “bring the courts closer to the become a profession of choice for many talented people.” If introduced, such a reform would and ambitious graduates of law faculties. have the potential to integrate advocates fully I also start my comments with the bar be- into the Russian legal community, which cause the existence of a vibrant and effective would revive a Russian tradition that was in legal profession is one of the essential precondi- place at the end of the tsarist era and then dis- tions for the realization of constitutional norms torted by Soviet rule. relating to a civil society, especially those set out A second set of obstacles facing the Russian in Chapter 2 [of the Russian Constitution] de- bar relate to Article 48 in the Constitution, voted to human and civil rights and freedoms. which grants every citizen the right to qualified Just as democracy is unthinkable without legal assistance. Unfortunately, instead of fund- competitive political parties, a liberal order ing legal assistance to the needy through the cannot be sustained without a self-confident state budget, the political leadership has forced bar that is prepared to defend the interests of advocates to devote a large portion of their prac- the individual and groups and to challenge the tice to legal representation for little or no pay. actions of the state. Opposition is vital in law This unfunded or underfunded mandate has a as well as in politics—it is just called by a dif- particularly deleterious effect on legal practice ferent name: adversarialness. And a bar is an in the provinces, where the percentage of indi- essential institute to maintain an adversarial gent clients is much higher than in Moscow and system. While noting a significant distance St. Petersburg. In one estimate, for example, 75 that the bar has traveled in the last 30 years, to 80 percent of the criminal caseload of advo- we must also recognize the serious challenges cates in certain regions is from court appointed that prevent the bar from carrying out fully cases. Further complicating life for advocates in its constitutional responsibility. Let me speak the provinces is the distance they have to travel briefly to two of these. to represent clients in court, for which they re- The first is the place of the advocates both ceive wholly inadequate compensation. symbolically and practically in the current It may seem strange to focus on issues that Russian legal system. The bar is no longer the seem so minor: do you pay a lawyer for travel- stepchild of Russian law, but it is still somewhat ing to represent a client in court. But these little less than a fully respected member of the legal elements of the system are absolutely essen- family. For example, the reputation and effec- tial to creating a pravovoe gosudarstvo. Without tiveness of advocates clearly suffer because of changes in the small rules, no larger reform, it an unspoken rule that Russian judges should seems to me, is possible. Policy relating to the be drawn from the ranks of law enforcement bar is one of the many areas where constitu- personnel and not the bar. It is the very same tional guarantees depend not so much on in- point that Peter Solomon was making about terpretation by the courts as on the issuance of the importance of the sources of recruitment enabling legislation by parliament and the issu- for members of the bench. It is very difficult ance and implementation of enabling rules by to carry out the provision of the first part of executive agencies. The devilish details of gov- Article 19 of the Constitution, which says all ernance in Article 114 of the Constitution that

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 37 are entrusted to the government and its minis- target of 60 to 70 percent of the population to terial bureaucracies have served on many oc- be employed in the small business sector. And as casions to undermine constitutional intent. For President Medvedev noted at the Small Business example, the state bureaucracy has hampered Development conference last March, the small the creation and development of small business business sector contributes now no more than 17 and, in so doing, has impeded the implementa- percent of the country’s GDP and only 1 percent tion of constitutional norms that encourage the of business innovation. development of a civil society. Now, why has small business development When most of us think of a civil society, lagged in Russia? Major factors include a num- we probably think first of NGOs and other ber of things that perhaps are not germane to social organizations. But I would argue that our discussion today on the Constitution, such the more fundamental foundations for a civil as the high cost of capital. It also includes such society lie in household economies and small factors as the state’s privileging of large firms in businesses. Without vibrant household econo- the energy complex, an unfavorable regulatory mies and small businesses, civil society lacks regime, and a tendency for state bureaucrats to financial viability. This creates an unhealthy use licensing and inspection powers as means of dependence on the Russian state, foreign or- extracting bribes from the owners of small busi- ganizations, or large enterprises for funding. nesses. Where state and most large-scale private Put slightly differently, the autonomy of civil businesses are able to construct a reliable krysha society depends on self-financing from a wide or “roof” to protect them against rent-seeking variety of private sources. by the bureaucracy—the chairman of the board Article 7 of the Constitution on Russia as of Gazprom is, after all, the first deputy chair- a social state guarantees the creation of con- man of the Russian government—small busi- ditions that assure human dignity and the free ness have remained especially vulnerable to the development of each individual, but it does not greed and caprice of some state bureaucrats. suggest that the state should be the primary Now, there had been a few pieces of legis- goods provider, at least not in my view, or that lation that have sought to remedy these prob- the state should serve as an incubator of civil so- lems—including 2001 laws on state registration ciety. In my reading, it simply holds that the state of juridical persons and on state inspections— is obligated to provide a social safety net. Article and they have had some impact. However, 7 therefore is not inherently hostile to the mar- because these laws are largely ineffective, the ket—an institution that in some form is essen- Procurator General noted last month that agen- tial for the emergence of a civil society. Indeed, cies conducting unplanned inspections of busi- Article 8 of the Constitution holds that private, nesses will need first to receive permission from state, and other forms of the property should the procuracy. And beginning in 2010, the pro- enjoy equal protection in law. I would argue curacy will start keeping a register of planned that this article also implies that various forms inspections as well. The procuracy has this ten- of private property, whether held by individuals dency to want to remain in business and want or small businesses or large enterprises, should to have as many people employed as possible. be defended with equal vigor. Has this constitu- But it seems to me a classic problem in Russian tional provision been respected? The statistical history of the failure of law, which in turn evidence suggests that it has not. Recent figures prompts the proliferation of checking mecha- show that employment in the private small busi- nisms—this is not law in the way that we would ness sector did increase somewhat, up to about want to understand it. 25 percent of total employment, but this figure If Russia is to develop a vibrant civil soci- is comparatively low by world and even regional ety and a mature legal culture, it will need to standards. For example, the comparable figures do much more to defend the interests of small in 2002 from the and businesses against those whose livelihood and were 37 percent and 58 percent. We should know self-importance depend on limiting the rights that President Putin in his plan for 2020 set a of citizens and enterprises.

38 / THE RUSSIAN CONSTITUTION AT FIFTEEN As my previous comments suggest, it is not try’s hegemonic party was recruiting to become the Constitution or constitutional interpreta- the next generation of business leaders. tion, but constitutional implementation that has It is hard to imagine a more troubling intru- been the most serious impediment to the devel- sion of the state into the life of the civil society. opment of a vibrant civil society and a mature It is what I called in one publication nomenkla- legal culture. There is, however, one element tura lite. By creating a towering figure of presi- of the Constitution itself that creates problems dent in the Russian political system, Chapter 4 for Russia’s political culture and civil soci- of the 1993 Constitution has also perpetuated ety. This is what I called elsewhere a Eurasian a personalism in government that is antitheti- form of presidentialism, which exists not just cal to the emergence of a mature legal cul- in Russia, but in other countries of the former ture, which, since the time of the , has Soviet Union, such as Belarus, , and insisted on the rule of law and not men. This Kyrgyzstan. Under this system, as our Chair and traditional personalism discussed in the work others have noted, the constitutional position of of Mikhail Krasnov and others cascades down the president is akin to that of a powerful mon- from the apex of the political system to shape arch. He does not merely serve as head of the the attitudes and behavior of leaders operating executive branch, and in this sense I might have at each of the lower levels of Russian govern- a slight disagreement that this is really not the ment. When there is a cult of the boss at the American presidential system. He does some- top, it serves as a model for governors and may- thing quite different: the Russian president is ors along the “vertical of power.” And of course the manager and coordinator of the entire po- the alteration of Article 1 has done nothing to litical system. lessen personalist rule. Not only are the current Constitution’s de- Finally, like good monarchs, recent Russian scription of the president’s functions disturb- presidents have sought in public statements to ingly close to those of the Communist Party in identify themselves with society and distance the last Soviet Constitution, but the institution themselves from vlast, or “power.” For example, of the presidency has many organizational sim- recall President Medvedev’s attack on the cor- ilarities with the Communist Party’s Central rupt and inefficient state apparatus in his re- Committee. This privileged position of the cent poslanie to the parliament. Unfortunately, presidency in the Constitution and in political these periodic and largely rhetorical campaigns practice perpetuates what Tucker iden- against bureaucratic corruption never produce tified as a tradition of a “dual Russia,” where lasting results. Until the president himself re- there is an active and superior state set against spects fully the values enshrined in Article 1 of the passive and inferior society. the Constitution, which calls for a democratic, One sees this unhealthy relationship be- federal, and law-based state with a republican tween state and society in various reform proj- form of government—and let’s all remem- ects that are now crafted by closely held presi- ber what “republican” means—it is unlikely dential working groups, as noted by Alexei that the Russian political leadership will have Avtonomov earlier on. It is also evident in the much success in reorienting officialdom from presidential involvement in the shaping of the self-service to public service and in transform- new cadres reserve; a talent pool that will fill ing what Alexander Obolonsky called “a ruler’s key positions—not just in federal and local gov- service” (gosudareva sluzhba) into a civil service. ernment, but in areas that lie squarely in the And without a civil service there is not room domain of civil society, such as business, sci- for a civil society. ence, and education. Last ’s Vedomosti, for example, contained articles that detail the for- Oleg RUMYANTSEV mation of the presidentially sponsored reserve Mikhail Gorbachev’s speech today was a lit- by the current party of power, United Russia. tle bit critical that we, the members of the The longest list was of business reservists, i.e. Constitutional Commission, do not talk about young persons in private firms that the coun- perestroika as the start of the whole process of

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 39 constitutional reforms. It is not very close to Washington, that our Constitution is not being truth, to be honest, because in 1988, together implemented, it should have developed out of a with the several colleagues of mine like Gleb constitutional process, it should have happened Pavlovsky, dissident at that time and today a differently, and so forth. prominent political technologist, we set up a This is certainly true, but the question is, club called Perestroika. Mr. Chubais together with what is the fundamental reason for it? Why is his brother were also members of this club, and the Constitution not being implemented? Is one of the founding members of the Perestroika there any way out of this situation? The answer Club, who is sitting there to the right of me, given by most experts, both in Russia and in was Leonid Volkov. Our first involvement in the West, is that this modernized constitution, constitutional reform was very simple: Mikhail built on models borrowed from the West, does Gorbachev has asked Oleg Bogomolov, an aca- not fit with our national culture. This point of demician at the institute where I was working, view has been expressed in the Constitutional to help him have a vision of the constitutional re- Bulletin and elsewhere. I am among those who form in the Soviet Union. Bogomolov, knowing would like to question this idea, both here at that our Perestroika Club was very often sitting in this conference and in the future. his institute, invited me to his office and asked I believe that the fundamental reason why me and my colleagues to draft our vision of con- the Constitution of 1993 has been decelerating stitutional reform in the Soviet Union. That was and skidding along the road does not have much done together with assistance of Leonid Volkov. to do with our culture and that this stereotype And it is my pleasure now to give floor to Leonid is not based in reality. On the contrary, we have Volkov, who was a prominent member of the data from public opinion polls indicating that Constitutional Commission. the legal and political culture of the Russian public is closer to this Constitution than is the Leonid VOLKOV culture of the elites that are now in power. I would like to repeat what several other peo- Of course, you can argue against this state- ple have said: There is an affinity between ment, but I would like to further comment on the Russian and the American constitutions. it. Let us look at what the Constitution of 1993 As a participant in the constitutional drafting really is. It has been said here that it was ad- process and a member of the Constitutional opted in a state of emergency, and many say it Commission from the very beginning, I can even rescued us from civil war. As a participant say with certainty that the greatest desire of the in those events and as an academic researcher, people involved in the process, especially in the I disagree with this. It was not adopted in a working group, was to create a constitution at state of emergency, and no real threat of civil least as good as the U.S. Constitution—a con- war existed at that time. There were no forces stitution for the ages, even if the drafting pro- capable of waging a civil war in Russia, either cess would take months or an entire year. To be in Moscow or out in the provinces. What we honest, I was not a supporter of this approach, had was, in fact, dual power. In other words, but there were many who were. Perhaps we there was a major conflict, which was brought could have achieved this thanks to the ideas and about not so much by deep-seated interests as energy of Oleg Rumyantsev, who was the cata- by the ambitions and private interests of what lyst of the constitutional process. He succeeded political analysts call interest groups. All of this in moving Yeltsin in this direction, after all. existed in reality. There were various plans for At least in the United States, Rumyantsev was social and economic reforms in the country, called by Freedom House as nothing less than but there were also serious conflicts created and the “wonder child of perestroika.” exacerbated by personal and, frankly, chaotic But let’s get to the core of our problems. disputes. Surely it was a very dangerous situa- It has been said today and will likely be said tion, as a reversal of course or even a coup was again, as it has been said at many conferences possible—but a civil war was not. Events dem- on this topic in , Moscow, and now here in onstrated that there were no forces, either out

40 / THE RUSSIAN CONSTITUTION AT FIFTEEN in the provinces or in the Russian capital that I do not mean Germany under Hitler; I mean were capable of moving large numbers of peo- , Spain, and so forth. ple, to say nothing of armed people. The group Now I would like to talk a bit more spe- of putschists led by Rutskoi and Khasbulatov cifically about the social situation in Russia. failed even to take over the Ostankino televi- Several extensive public opinion polls have been sion tower. conducted—these were not the cursory rating The Constitution of 1993, and the draft con- polls that normally do not say much about our stitution going back to 1990 (which I worked national mentality, for the lack of a better term. on with Mr. Sheinis and, of course, Oleg Specifically, Klymkin and Kutkovets conducted Rumyantsev, who was one of the main driv- several extensive surveys that showed that only ers of that process), was a constitution whose 7 percent of the public actively support the con- purpose was to bring about the modernization servative view that Russia should move back- of Russia. Russia had already gone through one ward in history, which we can call “back to the round of modernization under Stalin, but this 17th century,” in its approach to its political and was a negative modernization. It created large legal life. industry and urbanized the country; but this I could cite many other data, but my time industry developed like a cancerous tumor, de- is almost up. We will also have a roundtable vouring resources and producing low-quality, discussion, so I hope we will have an opportu- non-working, expensive, and energy-intensive nity to talk about this topic more. The results goods. This, in turn, created a split and dys- of many in-depth public opinion polls show functional personality within the populace. that, in fact, the Russian public is deeply di- This happens in every country whose goal is vided between deep-seated traditionalist views nothing but “to catch up with the developed and strong modernist groups. My colleague countries.” But Russia is an enormous country, Mr. Avtonomov wrote an article for our pub- and in Russia a dictatorship arose on a grand lication, in which he demonstrates how various scale. Like Hitler’s Germany, it wanted to take civil society groups unite into organizations, over the world and create a world empire. That interact with the government, engage in advo- is what Stalin’s modernization and industrial- cacy, and so forth. He analyzes both negative ization represented. and positive aspects of this phenomenon, but As Mikhail Gorbachev said today, when his that is a different issue. What it shows is that perestroika began, there was a general under- even under this Constitution and this regime standing that the country must be modernized Russian civil society is still alive. anew at all levels. It must again travel the path I would make a few suggestions so that we of belated modernization; but this time in a can move forward. I think the time has come rational way, or else it could not survive, ei- for us to revise the idea that the “backward ther economically or politically. In this sense, conservatism” of the Russian public is the main I see no inconsistencies between the policies of reason for the failure of the Constitution and Gorbachev and Yeltsin. Unfortunately, there modernization of Russia. The main reason is was a hurtful confrontation on certain tacti- the neo-traditionalist self-interests of a fairly cal issues, and if that could have been avoided small group that has managed to seize the com- Russia might be in a better position today. manding heights in our society. It is very im- The Constitution that was designed to mod- portant for academics and politicians, both in ernize the country is continuing to play that Russia and especially in the West, to try and same role today, only in reverse. I wrote the determine whether the concept of democracy following about this kind of modernization: requires us to interpret this reversal and this “Today the Constitution of 1993 is being used movement backward from democracy toward to serve the authoritarian and the “lets-catch- empire as a consequence of our cultural tradi- up-with-them” modernization, comparable in tion. That is, we must reconsider the view that several ways with the modernization imple- this process is inevitable given the mindset of mented by fascist regimes in the last century.” our people.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 41 I think we would all be very interested in sible from bargaining or political machinations the results of a comprehensive, in-depth inter- within government, such as the structure of the national study to determine the mindset of the welfare state that would emerge or the relation- Russian people today. Then, on the basis of this ship between the state and the economy). In study, we could, if the study data warrants such this story, the initial bargain drives subsequent action, implement modernizing policies to sup- policymaking. The people who were subse- port the Russian public’s modernization senti- quently elected to the government are not seen ment, including options involving international as important or interesting or maybe even rele- constitutional justice. Thank you. vant. By and large, this view lurks behind much of how we think about political change even Regina SMYTH now, where we look at some successes and fail- I think there was no more exciting time to start ures and talk about the institutions being right, graduate school focusing on Soviet politics than or not quite right, as we seek explanations for 1990, when the people sitting at this table were these successes and failures. doing such exciting and innovative work. My re- My work offers an alternate explanation for search program has built on that work to develop why some transitions may take longer than oth- some new findings about the role of institutions ers, as well as why attempts at political engi- in democratic transitions. Of course, I am not neering may have unexpected consequences. In a constitutionalist but a political scientist, and particular, I argue that the preferences and goals hope that I can offer some contrary insights. of the people sitting in those institutions are at My first insight is that institutions actu- least as important as the institutions themselves. ally constrain political outcomes; but that the In other words, in democratic regime struc- amount and implications of this constraint de- tures, where preferences of decision-makers pends on circumstances. My second insight is are diverse and volatile and where they are not that contrary to expectations, the practice of well-connected to consensus in civil and politi- politics as it plays out in different institutional cal society, institutions may not do a very good settings may work to weaken—not strength- job of constraining outcomes. Thus, the art en—electoral and governmental institutions. of the possible, in Bismarck’s words, is not so Those insights, I believe, help us to explain out- much determined by broad constitutional ar- comes such as the enactment or defeat of new rangements as by the ideas, goals, and priorities laws, but also the success or failure of the larger of the decision-makers that inhibit them. democratic enterprise. So here, with Blair’s Imagine that given either some public opin- caution to be careful about theory foremost in ion data, or some roll call voting data, or some my mind, I am going to frame my arguments in policy position data, that you could map the set terms of a well-known theory about the politics of policy outcomes that could possibly come out of new democracies—the notion that political of legislative bargaining session. Well, it turns change and in particular the development of a out you can do that given coauthors with the successful, stable democracy could be ensured right set of math and computational skills. And given the right institutions, such as the rules that is what I have been working on for the past and procedures set out in a constitution. couple of years with my coauthors—mapping The central assumption of this theory is the outcome space of post-Communist legis- that institutions embody a bargain or consen- latures. This work yields some unexpected in- sus about the priorities of the country, both in sights about the ways that preferences terms of core policy and in terms of the way it with institutions to produce outcomes. would be governed. This consensus is thought First, and again it will not surprise you, po- to reflect opinions in political society and, hope- larized party systems with an empty center in fully, civil society. The idea is that institutions a legislature yield an extremely large set of po- would constrain political behavior by reducing tential outcomes. And this is exactly the picture the uncertainty of subsequent policy outcomes that emerges in the maps of the Russian Duma (i.e. limiting the set of outcomes that were pos- and, I might add, the Ukrainian Rada through-

42 / THE RUSSIAN CONSTITUTION AT FIFTEEN out the 1990s. In both cases you have a large set legislative outcomes are possible, the president of possible outcomes that were skewed to the can use agenda control to make sure that his center left of the political space. Also, in both preferred outcome is the only actual result. cases, the large number of unaffiliated deputies Systems with large potential policy spaces also dispersed throughout the policy space greatly create tremendous incentives to use pork or increased the size of this space. patronage to shape specific outcomes. Again, Conversely, systems with core parties— presidents with budgetary power have tremen- parties located in the center of the political dous capacity to build coalitions on the basis of space—tend to have a much smaller range of pork or patronage as opposed to policy. This potential policy outcomes and often collapse has long-term implications for democracy. to the particular preferences of the centrist In addition, when many outcomes are possi- party even when there are large numbers of ble, there is tremendous incentive to change the other parties surrounding it. This centrist po- rules within existing constitutional structures sition conveys a tremendous advantage to the to limit the type of people who can be elect- party even when that party is quite small, i.e. ed and therefore control the size of that policy even when it gets 20 to 25 percent of the vote. space. Clearly, these conditions also provide an This explains not only the natural advantage incentive to abrogate constitutional rules or of the early Unity Party, but also the behavior move outside of its system. We see this pattern of parties in other systems—for example, the in Russia and in other democracies with the Israeli Kadima Party and the disproportional same sorts of preference configuration. influence it was able to exert over outcomes in What are the practical implications? For the past electoral session. a long time, political scientists thought that When we map the trends of the Russian building political parties, even disciplined par- Duma from 2000 to 2003, we see United ties, would be enough to create stability within Russia moving towards the center of that policy a political system. It turns out that political par- space and increasingly gaining influence as the ties are not really sufficient to ensure stability. party actually moves into that space. But that When preferences generate a large policy space, is not the end of the story. Because as United even strong political parties can be usurped or Russia moves to the center of the political space abrogated. Thus, even logically well-developed it does not collapse around the center: Party and internally logical constitutional rules may discipline is so weak that it keeps the space re- not always give rise to predictable politics. That ally quite large. The problem is that as United is, when you have lots of dispersed preferences Russia cannibalizes both independent deputies in the space, you may have some quite unex- and defectors from other parties, it cannot con- pected or even unpleasant outcomes. trol its individual members. So what does it do? Another implication is that leadership and It looks for ways to increase party discipline. in particular trusted leadership (and Alexei The problem shifts from eliminating opposi- earlier used this word “trust,” which means tion to creating control within the party. something very particular, i.e. someone who Why does this outcome heterogeneity - you think is operating in your interest) be- ter? First of all, a large policy space implies a comes extremely important for shaping con- great deal of uncertainty over potential out- sensus around particular outcomes. When comes; and that creates both incentives and op- leadership is limited to one party or even one portunity for strategic and sometimes illegal be- person, the success of the democracy is to a havior in order to get the precise outcome that large extent contingent on the preferences the people with power want to achieve. Here of that person. Moreover, the elimination of is where institutions come back into the story. both the potential for new leaders to emerge Presidential systems where executives have the through the political party system and for new capacity to introduce legislation and control leaders to emerge from regions into the na- the agenda give tremendous disproportionate tional arena has implications beyond the ap- power to the president. Essentially, when many pointment of governors.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 43 The last point I want to make is that when The first observation is this: it looks like you have a large policy or a potential outcome there is no great demand for a constitution in space, the most important factor shaping out- Russia. Certainly, this demand can be measured comes may not be the constitutional rules, but in different ways, but here are some superficial the auxiliary rules that govern legislative deci- points. First of all, this conference on the 15th sion-making, such as agenda setting powers or anniversary of the Constitution is happening the rules that govern what gets on the floor of here, not there. In fact, I have seen no substan- the legislature. So, for instance, a reform of the tial activities devoted to the Constitution hap- Duma’s two-track organizational structure that pening there. If you look at the Constitution privileges parties on the one hand and com- Day, it has been abolished as a . If you mittees on the other, could provoke impor- look at the location of the Constitutional Court, tant changes in legislative power. In the case of it has been exiled to St. Petersburg. Certainly, I the current Russian system, a strong commit- would not argue that exiling it to St. Petersburg tee system could balance the disproportionate is much worse than exiling in Krasnokamensk, power of the predominant party and provide definitely not. But exile is exile, and members new avenues for expertise and diverse opinions of the Constitutional Court who have been ex- in the policy process. In other words, internal iled there understand that pretty well. legislative rules may be as important a democ- Also, I have not seen much mass or even indi- ratizing force as strengthening the constitution- vidual movement in defense of the Constitution al relationship between the parliament and the or even some of its particular elements. There executive because those institutions constitute has been nothing similar to what happened, as important elements of the checks and somebody already mentioned this morning, in balances system. Pakistan a few days ago. Once again, the com- In sum, my work is consistent with the no- parison is not with the United States, Europe, tion that institutions matter, but it highlights Sweden, Britain, or some continental power, the importance of auxiliary institutions beyond but with Pakistan. Even in Pakistan there is the ones we tend to focus on, such as presiden- some demand for a constitution, but not in tial power, to look at rules that govern legisla- Russia. That is why my first question is: why? tive procedure. It also underscores the fact that Why is there such a limited, to put it mildly, even in a situation in which the opposition is demand for constitution, and, generally speak- allowed to flourish again in Russia, it may be ing, for the rule of law in this regard? the case that politics will take a long time to The second observation that I would like to become orderly, predictable, and even control- make is that it looks like the Constitution that lable. Outcomes may remain very unpredict- we are discussing right now, which is, as you able for a long time until that societal consensus know, 15 years old, does not look very alive to is reached. me. Certainly, we can look at some parts of the Constitution which seem good, whether it con- Andrei ILLARIONOV cern human rights, civil liberties, political free- Ladies and Gentlemen, I am here almost acci- doms, party systems, the parliament, the court dentally. I was not supposed to be here, since I system, or even, generally speaking, the rule of am not a constitutional lawyer. I am not a law- law, legal equality, federalism, and so on, and at all; I am not even a political scientist. I so on. We can continue this list for a long time. am just a representative of the poor profession There will be an enormous amount of informa- of economics, and it looks like I am a stranger tion, but what is written here in this wonderful here and would probably speak using incom- book called The Constitution, actually does not prehensible economic jargon, trying to apply it exist, or almost does not exist, in the current to the issues that you are talking about. As an Russian situation. economist, I would offer a couple of observa- I would cite just one example, because until tions and also raise a couple of basic questions relatively recently most of the abuse, not use, that we might discuss. of the Constitution happened within Russia’s

44 / THE RUSSIAN CONSTITUTION AT FIFTEEN borders. But some time ago it went beyond “Constitution,” the advertised features were Russian borders—just look at what is written fantastic. Like a modern iPhone—it is versatile, here in Article 102(g). It is very clearly stated has great color, nice sound, and excellent fea- that the use of the Russian military force out- tures. So I bought this device and I am trying side the country can happen only after and to play with it, and after some time I find that under a decision of the Federation Council. We instead of receiving calls it receives no calls, the have all witnessed the Russian-Georgian war in picture is black-and-white, and there is almost August, 2008, where Russian troops were used no sound. But they say: “No-no-no, that is ex- without any consent, decision, or even so much actly what you bought.” I am not very much as a discussion in the Federation Council. Even convinced, so I am trying to fix this device, but since August, the Federation Council has not instead of responding positively it is giving me discussed this issue at all. That is all the more an electric shock—in the best case. So I keep interesting when we consider that even the de- trying to get this device to work. I bring it to cision of the so-called Security Council and the a service center for repair, but instead they give announcement of the person who is currently me instructions on how to use this device. They occupying the position of the Russian presi- say, “It is wonderful phone, it is really good.” dent arrived many hours after Russian military That is just a description. The device is slightly troops occupied Georgian territory. So what different from the description. does reality have in common with the text of My question is—what went wrong? Was it the Constitution? the original design that was wrong? Or did the This is especially interesting, because Oleg engineers or “founding fathers” of this device Rumyantsev was talking about parliamentary make a mistake in the beginning? Or perhaps, commission investigators that have actually died in the process some technology was not ap- in the Russian case. Just compare once again— propriate? Or was the actual use of this device not even to the United States, or Britain, or quite different from what was intended? What other countries—but to Georgia. Georgia is actually happened? I would ask: what actually not a perfect example of a full-fledged democ- made this Constitution not work? There could racy, but nevertheless Georgia created a par- be several hypotheses. Perhaps the text itself is liamentary commission that was able to work incorrect and should be rewritten in some way. incredibly efficiently. It brought all 23 top of- There could be several issues, but one of the ficials in the country, including the Minister of most crucial is the choice between a presidential Defense, the Secretary of the Security Council, system versus a parliamentary system. Another the prime minister, and even the president in issue would be what conception of a legal sys- front of them, and actually questioned them tem would be more correct to use—giving the and broadcasted all these sessions live. That is authorities rights or limiting powers of author- quite a different story from Russia. And, by ities—as the basic principle. Or, perhaps even the way, the head of this commission in the more generally, should it follow the continental Georgian parliament is a representative not of law or common law practice? the majority but of a minority party. He will Another issue that has also already been be in Washington on March 24th, and we will touched upon in earlier presentations is national have a special session at the Cato Institute with cultures, such as the legal culture, civil culture, the head of this commission and the Speaker of and political culture. Culture is a very stubborn the Georgian parliament on what is going on thing, but as we know, culture is not always with the Georgian parliament and constitution- the same. It is evolving. We know many exam- alism in this regard. ples of cultures that have evolved a great deal. Coming back to Russia, and considering Another issue that has not been mentioned, but the Constitution from an economist’s point of I think has a great importance for Russia, is the view, I have a sense that what I thought I pur- issue of federalism, including regionalism, na- chased is not quite what was delivered. When I tionalities, and ethnicities. It seems to me that purchased this particular interesting device, this in a country with a very clear imperial nature,

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 45 democratic institutions, including democratic the birth defect of the Russian Constitution is constitutions, do not fit very well. At least, we one of the reasons why it goes in this direction. do not have very good examples of any empire It was a very difficult birth, it was a very pain- or remnants of empire that have successfully ful birth, and obviously the Constitution bears implemented a democratic system. enormous signs of that defect. So I think that at least these several ques- tions are really of great importance. Without Discussion answering them first in some kind of an intel- lectual debate in theory, we would not be able Vladimir LAFITSKY to move to subsequent stages to adjust or reform First and foremost, our goal is not to create more in practice, at some point, the Constitution and myths: We already have too many myths sepa- the political system in the country. Definitely, rating us. Of course, we can joke about what we will be forced to do it at some point. But we have or do not have, but I hope to begin a when we get a chance to do it, we should be constructive dialogue instead. Although I liked intellectually ready for it. Otherwise we will be Mr. Pashin’s presentation, I disagree with the in a situation, when Russia will become famous notion that the courts are tentacles of the former not for producing an iPhone-level modern Communist Party. This is not true. We have constitution, but will be famous for producing created a new judiciary. It is very deformed, but texts, instructions, and descriptions of what the it is not a tentacle of the old Communist Party. constitution should look like. Thank you. In his speech, Professor Trochev asserted that our courts are in constant contact with the ex- Oleg RUMYANTSEV ecutive branch. This is entirely untrue. My field Thank you, Andrei. Let me tell you that I am of expertise is the United States, but last year I sitting very close to Andrei, and his copy of the incorrectly predicted the outcome of presiden- Constitution is in quite a bad shape. I guess he tial elections for the first time since 1980, in is looking at it quite often. part because I had not been to the United States in a long time and was a bit removed from what Andrei ILLARIONOV was happening there. My prediction was in- I can explain. This copy of the Constitution correct for the same reason as Mr. Trochev’s was with me during the rally of the opposition, negative assessment of our judicial system: Mr. Other Russia, on April 14th, 2007, and suffered Trochev is removed from what is happening in with its holder and owner from police actions. Russia today. Our courts are entirely different However, while this copy survived, other copies now. The judicial branch is like a powerful cor- of the Constitution were in much worse shape poration that lives by its own laws and often and were left under the boots of the OMON totally ignores what the supreme authority—in police in the streets of Moscow. this case the executive branch—expects of it or demands from it. Oleg RUMYANTSEV We have had many problems, of course. Andrei mentioned some, I would say, provoca- Confucius said: “If you have the right people, tive ideas. So this is an invitation for questions your governance will flourish. If you do not and answers; perhaps someone from the audi- have the right people, your governance will ence would like to speak. I can only say in reply wither.” Unfortunately, this is a huge problem to Andrei’s Georgia case: We are sitting in a for our courts: we have bad judges who are in- country where the doctrine of Vice President dependent. I take full responsibility for these Cheney is in full effect, with the unlimited words, because I have studied this issue exten- war powers of the president as commander-in- sively and came to a conclusion that our judges chief and chief law enforcement officer, so we are very independent. Unfortunately, they are have something in common between these two also independent from the laws of conscience. countries. This is just a short reply. Also, on This is the main problem for our courts, not your issue of “what went wrong,” I think that that they meet with so-and-so and decide

46 / THE RUSSIAN CONSTITUTION AT FIFTEEN something over a cup of tea or some stronger Leonid VOLKOV beverage. That does not happen. So, on this If I may, I would also like to offer an answer point I categorically disagree. to this question. I will give an example. When I also disagree with what Mr. Illarionov I was a deputy in the Committee for Human said. Perhaps we are reading different constitu- Rights, we had a mission—a constitutional tions. I, too, have a copy of the Constitution mission—to approve candidates for judges for here in my briefcase and I, too, am familiar the City Court of Moscow. Five candidates with it. And although my copy is perhaps not were submitted to our commission, which was as beat-up as Mr. Illarionov’s, I can say that our headed by a famous human rights , Constitution is in effect. Yes, it functions with Mr. Kovalev. We posed questions to these five big problems and not nearly as effectively as it candidates, knowing that we had to approve at should. But it is in effect. The Constitutional least three of them. All of the five candidates Court has not gone into exile, as was said here. were absolutely incompetent. They were like No. It so happens that most of the judges are high school students, ninth grade students, in from St. Petersburg, so the Court has gone to their morals and in their answers. They were the place of residence of most of the judges. absolutely unqualified for the office. That is a different matter, but it is not exile. We I asked Kovalev: “What shall we do? I can’t can use these eloquent phrases, but we should vote for these people, they are not fit to be not create new myths. Thank you. judges. We want to have good judges, it is very important to have a better court system QUESTION and justice system.” In the end, we were com- Gene Huskey briefly mentioned the corrup- pelled to approve at least two of them for the tion of the bureaucracy, but don’t you think second tier court. that one of the major impediments to legal de- So you can imagine my thoughts when velopment is not only the corruption in the Professor Solomon spoke about the moral quali- judiciary, but also the population that is ready fication and cultural qualification of the judg- to establish corrupt relations with members of es, which is really the most important for the the legal community? Russian reform and for the implementation of the Russian Constitution. In fact, it is really nec- Eugene HUSKEY essary to build an entire cadre that is well-versed I think there is corruption on a number of in reference to the Constitution. Such a cadre is levels: there are people in power and there not very easy to make, because the intellectuals, are people at the bottom. I am reminded of a the real intellectuals and really educated juridical case that happened in Florida where a Russian intellectuals, do not want to become judges. For immigrant came in and wanted to pass the example, one person nominated by Yeltsin to be driver’s test. Now, instead of getting the book Procurator General, was really a decent man, but and studying for an hour as this is an easy test after a few weeks he refused to continue in his to pass in Florida, his first idea was to call office. This is really a problem, and the point I up his cousin who might know someone in am trying to make is that the international com- the Department of Motor Vehicles. This is a munity should do more to encourage coopera- classic problem when you have a society that tion or other forms professional development does not believe that rules work, that believes with professionals in the Russian judicial system. that you have to have personal contact, right? Maybe this will help. So, is this corruption? It is, in a way, because what they are trying to do is to end-run the Andrei ILLARIONOV system of rules. So I think that yes, corrup- Since I was expected to make some suggestions tion’s a problem, but at that level of ordinary on this issue, on some of these issues, I will try. people and also at the bribe-taking level in At least I will offer some suggestions on where the bureaucracy. Other people may have dif- to look for positive experience, which can be ferent opinions. studied and applied to the Russian case.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 47 If we look back six years, there was a coun- though the embassy reported on those prob- try which rated much lower on Transparency lems in some detail. International’s corruption index than Russia. Then let’s not forget that when the It was Georgia. In the last six years there was Constitution was ratified there was also an elec- no country in the world that has improved as tion for a new state Duma. In that election, the dramatically as Georgia—it actually skyrock- Russian people decisively rejected Gaidar’s party eted to top ratings within the Transparency and gave massive support to the corruption index. This does not Party and to Zhirinovsky. This coincided with mean that there is no corruption in Georgia, to Moscow by the then-American vice they do have some; but it is incomparable what president, and the question then arose: should they have today versus what they had six years Russian policy under its new constitutional sys- ago. This happened within a really short period tem adhere to the will of the people or should it of time, within five years, with almost the same maintain the neo-liberal program? The advice people, in a country which, frankly speaking, given to the Russian government was to do the is much worse off economically, politically, latter. So, at the first instance when the ques- and geopolitically than Russia. When we talk tion of respect of constitutionalism or even rule about the Georgians, it is quite hard even to of law came up, the policy of United States at understand whether this improvement is true or the time, when it had enormous influence in not, or maybe they are trying to fool us. Still, Moscow, was the wrong one. this is a fact of life: they stopped bribing their traffic police; they stopped bribing several other Oleg RUMYANTSEV organizations as well. It is absolutely amazing. Thank you for this comment. I cannot with- Members of the new generation, and I have stand the temptation of a one minute counter- talked to some of them recently, do not know comment. We are now publishing a new vol- now how to bribe officials. The old generation ume, the second half of 1993. I write there that still remembers; but they are, too, losing this on September 14, President Yeltsin held his quality pretty quickly. This is amazing. I think, presidential council, and a member of the coun- for all people, for lawyers and those who im- cil, Mr. Kostikov, has it in his memoirs that the plement law, etc., this experience is absolutely president told his advisors: “Today I got a call unique. It definitely should be studied so that from President Clinton. The United States is we could see what has been done there and very worried about the destiny of privatization what can be implemented in Russia. in Russia. So I recommend now to approve the edict to dissolve the parliament.” It was an in- QUESTION teresting example of that influence, which you On the question of what went wrong, since this mentioned. And only my friends in the Labor conference is in Washington, perhaps it would Party of Britain were the only political force not be inappropriate to examine the policy that really condemned President Yeltsin for his of the United States, which was very influen- actions on the 21 of September, 1993. tial in Moscow 15 years ago. I was the chief American political analyst at the embassy in Viktor KUVALDIN Moscow during those months, and certainly I did not intend to raise this issue here, but I Washington’s reaction to the proroguing of am very grateful to you for your presentation. parliament, and particularly to the abrogation During the coup d’état of September 1993, I was of the Constitutional Court, was one of mas- with President Gorbachev in Italy. As soon as sive indifference. What Washington wanted we heard the that Yeltsin had basically dis- was a constitutional system, which would allow solved the parliament and shut down the whole the continuation of macro-economic stabiliza- program, we went to Rome to hold a series of tion policy as defined by neo-liberal doctrine. meetings. I took part in them. Gorbachev met It was indifferent to almost any other potential with the Italian foreign minister, the leaders of problem within the constitutional draft, even both houses of parliament, the prime minister,

48 / THE RUSSIAN CONSTITUTION AT FIFTEEN the president, and the , all on the same day. are absolutely right that this is one of Russia’s His message was: Do not let these unconstitu- fundamental problems, much more fundamen- tional actions stand. Sitting in that meeting with tal than all the economic problems and all other the Italian president, I saw that the Italians and issues we normally talk about. the Europeans were wavering. However, we later learned that, under strong pressure from Oleg RUMYANTSEV Washington, the Europeans ended up support- In my opinion, the single greatest and most ing these actions. I think that is a lesson to all of powerful achievement of the 1993 Constitution us for the future. is that it preserved and strengthened the con- stitutional federation. The Russian Federation QUESTION came close to falling apart in 1991-1992. The Andrei Illarionov touched on the topic of fed- Constitution cemented the concept of a federa- eralism in Russia and spoke of the destructive tion based on a constitution rather than a treaty. influence of imperial ambitions on the growth Another major step in this direction occurred of democracy. As he explained, the vertical after 2001, when the member states of the fed- consolidation of power over the eight years eration amended their constitutions to make of Vladimir Putin has happened because of them consistent with the federal Constitution. the need to preserve Russia’s territorial integ- But unfortunately, the pendulum subsequently rity. Many historians have studied this ques- swung back the other way, and the attack on tion throughout Russian history, and they have the principle of federalism began. Today feder- noted a certain tension in Russia between the alism is becoming more and more of a fiction growth of individual liberty and the preserva- and that is the problem we need to talk about. tion of the territorial integrity of this enormous Still, the undeniable achievement of the 1993 country. Do you think this problem exists, and Constitution is that it saved our constitutional if so, how can it be resolved? federation. In this sense I totally support the way it has worked out. Andrei ILLARIONOV This problem does exist, and it is very seri- Viktor SHEINIS ous. This problem goes beyond a purely politi- You know, things happened so inconsistently. cal discussion. It is a fundamental philosophi- The Constitution passed through several stages cal and legal problem. On the one hand, the of development in 1993, and ultimately the con- legal equality of all citizens of the country is an flict ended with a decisive victory for President essential prerequisite for a democratic and lib- Yeltsin. As a result, changes were made to the eral state. However, having national or ethnic text of the Constitution that made it worse— autonomous entities and regions with special in particular, the procedure for choosing the rules clearly contradicts this principle. I think members of the Federation Council. In one the world has been trying to find a reasonable, sense, however, the Constitution became bet- democratic solution to this problem but has yet ter in the fall than it had been in the summer, to find this ideal. One solution would be- ex because the provision stating that the member treme regionalization and federalism, which republics of the federation are sovereign states would fundamentally alter the political and was removed. To add to what Mr. Rumyantsev governmental structure of the country. For just said, I believe this was a very important step many in the country’s national political elite, or in strengthening the Russian state as such. should we say, the ethnic Russian political elite, and for a significant number of the country’s QUESTION ethnic Russian citizens, the very thought of this There is a fundamental question that has not (which, incidentally, has never been proposed) yet been answered: was the Constitution of would be so unacceptable that they could not 1993 actually adopted? Unfortunately, this even think about it. So the country is sliding question is often overlooked, but I would like in the opposite direction. In other words, you to discuss it.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 49 Oleg RUMYANTSEV Lukianova demonstrated persuasively with their I would be happy to begin answering that data, only 43 percent voted for the Constitution, question. I will be brief, because I discuss this not 57 percent. But this is a formalistic legal ap- subject in my introductory article, which talks proach. The Constitution was adopted, because about the last 6 months of 1993, in our Anthology the vast majority of political forces in the coun- on the History of the Drafting and Adoption of the try were exhausted, just tired to death of the en- Constitution. It will be published on March 31. ervating political battles and confrontations. By all appearances, the Constitution was not The Constitution was essentially adopted as adopted, but it was a very complicated situa- the lesser evil. All the problems with its adop- tion. As you know, President Yeltsin held the tion and its birth trauma were accepted as a referendum on the Constitution not according lesser evil than having no fundamental law at to the previous constitution that was still for- all. In a sense, it was a social contract that we mally in effect, i.e. not until September 21, but entered into because we had no choice. It was until December 25, 1993. Nor did he conduct better than nothing. In other words, in a for- the vote pursuant to the Law on Referenda. mal legal sense, it was not adopted. But politi- He held the referendum on the basis of his own cally and practically, it was adopted, because we order of October 15 and its provisions on vot- agreed that it was the only alternative to the ing. Moreover, as democrats from Alexander horrible things that could have happened if we Sobianin’s Center and Communists like Elena had no constitution at all.

50 / THE RUSSIAN CONSTITUTION AT FIFTEEN PANEL III Constitutional Guarantees of Social, Economic, and Regional Development

Vladimir MAZAEV not release me from responsibility and the duty Ladies and gentlemen, thank you for inviting to make a scholarly analysis of what is happen- me to this conference. ing today. I would like to share some thoughts and my One more comment. There is a formal general impression of the process by which our constitution, and there is an actual one. We constitutional model and our economic sys- must always remember this. In its form, the tem are currently evolving in Russia. But first Constitution of 1993 is truly a liberal, demo- I want to make two comments. During this cratic constitution. Its provisions meet the stan- discussion, very serious issues have been raised dards of the second wave of constitutions. The regarding the future of the Constitution, how it Constitution is based on the liberal democratic was adopted, and the institution of the presiden- model. This is the result of the rejection of the cy with its excessive power. All of these things old Soviet economic model, which did not rec- affect the economic model and our economic ognize private property. So in our Constitution, development in one way or another, because no private property is paramount, and the princi- matter how much economists claim they are re- ples of the free market economy are enshrined moved from the Constitution and legal issues, in the Constitution. This is good. It was a huge as Mr. Illarionov claimed, there is the concept breakthrough in changing the economic and of the institutional economy, which has been social structure. However, its primary intent steadily gaining ground in the academic com- was the destruction and rejection of the old re- munity in recent decades. gime. This Constitution, while it established a This concept implies that while there are positive economic model, also took two steps purely economic factors (accumulation and backward. redistribution of wealth, etc.), the elements of First, this Constitution failed to incorpo- the institutional economy—a strong judiciary, rate advancements in constitutional governance a transparent and clear government that inter- made in recent decades by countries in the third acts with the public, and public trust in gov- and fourth waves; advancements such as paying ernment—are also extremely important in eco- special attention to the social component, con- nomic and industrial development. Therefore, cerning the private sector and its responsibility you have nothing if you do not have a constitu- to society, balancing public and private inter- tion, a judicial system, and enforcement of the ests, and giving priority to the public interest in rules of the economic game. That is the first certain areas. These elements establish the right point. of the government to intervene in the economy Secondly, on our team of Russian experts and for various reasons. Our Constitution does not members of the Congress of People’s Deputies, have this. I was among those who did not vote for the ex- Secondly, the Constitution did not incorpo- isting Constitution and did everything possible rate any part of the Soviet model, which, on to oppose the creation of the office of president some occasions, very successfully regulated so- in Russia and the status of the presidency under cial and economic processes. We should recog- the existing Constitution. This, of course, does nize that, in places, this experience was positive.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 51 This Constitution did not incorporate either of a certain macroeconomic stability—until the these things. It played its role as the destroyer of recent economic crisis, of course. the old regime and as the foundation for future I would like to mention two main trends changes, but the elements I mentioned were occurring now that are part of the actual im- disregarded. Yet experience shows that these plementation of our constitutional model: the elements have a necessary place in the constitu- significant expansion of the government’s role tional framework, because if they are absent the in regulating the economy, and the increas- gap they leave will be filled by entirely different ing social orientation of the economic system, instruments and approaches. which did not exist previously. I believe these To summarize, during its first stage, the two trends are consistent with the ways in Constitution of 1993 helped to destroy the which the relationship between the economy old and initiate the new, including the adop- and the government is developing in the world tion of laws on the market economy, which economic system. The current economic crisis experts from the United States (from Harvard, demonstrates the extent to which the govern- Stanford, and elsewhere) helped to draft. ment has a role in the stabilization and recovery They are, in fact, the founding fathers of our of the economy and social institutions. market-oriented Constitution, which I do not This is why this period of adjustment in so- think they would deny. It is interesting for cial, economic, and political life has led to a them to how this model is evolving and stronger government in our country. How this working now. happened is a different question, and I would Naturally, the first stage of radical changes mention several aspects of this process of in- under the existing constitutional model came creasing the role of government. The first is with enormous costs and losses. Among these is the change in the government’s treatment of the illegitimate, or not entirely legitimate, pro- ownership rights. Public property—govern- cess of privatization, which raised doubts about ment property—is becoming more prominent. the legitimacy of existing property ownership Formally, the scope of public property is not in the country in general. We are still feeling expanding; it is, in fact, shrinking. But in real- the effects of this problem today. ity, by increasing its majority share in a com- Another problem was the excessive decline pany or an organization, the government and of the government’s role in the economy. The its ownership instruments are permeating the government abdicated its role in economic reg- entire economy. I believe over 60 percent of the ulation. There was no real policy on disman- economy, perhaps even more, is now under the tling the monopolies. Government services be- control of the government and/or under the in- came commercialized just as we experienced a fluence of government institutions. spike in poverty and the onset of a demographic Federal property has begun to dominate re- crisis. All of this happened during the time cently. We have three levels of state property when the new, market-oriented constitution under the Constitution: federal, regional, and was being established and the old constitution municipal. The federal government is currently was being destroyed. attempting to consolidate its economic power In the next stage, over the past decade, our at all three levels through budgetary controls country succeeded in creating a constitutional and appropriation of the best pieces of property and legal basis for regulating the economy. at all levels. We looked to the experience of both Europe The government is also expanding its means and the Anglo-Saxon countries, primarily in and methods of influencing the economy and North America, in formulating laws on bank- increasing its role in planning of domestic and ing, the financial sector, civil law, etc. Our international business; and it is centralizing the economists and think tanks, like the ones most important property and largest tax rev- present here, now say that this was all made enues. In doing this it is using direct admin- possible by the legal framework of the exist- istrative methods and exploiting the dominant ing Constitution, which allowed us to achieve position of government interests in business dis-

52 / THE RUSSIAN CONSTITUTION AT FIFTEEN putes. According to recent opinion polls, nearly To summarize, the processes that are hap- 60 percent of business owners try to avoid re- pening at this stage of our development dem- solving disputes in court if the other party is a onstrate yet again that the constitutional frame- publicly owned entity or the government has work of a market economy, which was formally interest in it. enshrined in the Russian Constitution, is being What we clearly have now are quasi-feudal filled in with market-oriented content. Yet this relations between government agencies and constitutional framework is only the tip of the businesses. What does this mean? We are not iceberg. There is also the civil, banking, and talking about corruption here. Corruption financial laws that meet all the formal standards is not required for this relationship to exist. of a market economy. Simply: an investor comes to a region, and he is On the other hand, the increased role of told bluntly: “You have come with good money the government, the change in the extent of and good projects, but you must go and see the government involvement in the economy, the top official for the region, otherwise your busi- convergence of political and economic power, ness will not get off the ground.” The top of- the conversion of business into government ficial welcomes the investor and says, “You are and vice versa, and everything Mr. Sheinis said a good guy and you have money, so I am inter- about how Russia’s eternal misfortune is the ested in you. But you must do certain things in mixture of political and economic power—this the social sphere, take on certain construction is all true. Corruption as a natural component of projects, and address various problems in the government management of the economy, the region. End of discussion.” This is not corrup- application of the law in ways that are inconsis- tion; this is a form of non-economic compul- tent with the rule of law and democracy—we sion. If you do not agree, you will not get your have all this in Russia today. land permit, and so on. This is the standard We often hear that our political system and practice today, and it is not all that bad. our political institutions are eclectic. On the one Another factor is the insufficient political hand, in 2005, then-President Putin said, “We and legal protection for property rights. This must stop reviewing the legitimacy of privati- is manifested mainly in the application of the zation in order to ensure the stability of public laws. For example, a or mayor might commerce.” To do this, he proposed an amend- give an unofficial order not to issue a deed for ment that would shorten the of limita- a piece of land to the person who has a house tions on claims of void transactions from 10 to or other building on that land within the city 3 years. This was done to stabilize commerce. limits. Under the law, that person has not only On the other hand, the government uses ad- the right to acquire title to the land, but also ministrative and police measures to redistribute do it through an expedited process. But the re- property and seize the most significant proper- gional or local authorities often try to prevent ties in order to protect, as they put it, “the eco- him from getting it, because they might have nomic sovereignty of the government.” problems if they lose control of land in their Such eclecticism is contradictory, but it region or city. This is how the law is applied permeates our political and economic system behind the scenes. If the person goes to court today. If you read the government’s plan for and sues, he may have to go through one, two, socio-economic development through the year or three levels of appeal, but the court will rule 2020, you will see that it is a wonderful plan. in his favor and on the side of the law. So there It says that the principles guiding the future of is this tug of war and this flawed application of our country are democracy, the free market, the law. Unfortunately, the courts do not al- and limited government interference in the ways come down on the side of the law. economy. On the other hand, our leaders like One other area is economic forecasting and to say that our domestic capital can compete planning, where the government is beginning in the global economy only through the use of to take a more active role and expanding its government levers. They claim that to uphold regulatory scope. economic sovereignty, modernize, and make

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 53 the leap to a new innovation economy, we must Code, and Professor Butler’s collection of Basic use the power of the government. Legal Documents. I think the current constitutional model Oxford examinations take the form of writ- functions between these two tendencies. The ing several essays from a list of topics. Here is first is to use market mechanisms effectively one of the most important of the topics of- and improve the quality of management so that fered: “‘The new Constitution of the Russian the market will thrive in the global economy. I Federation has achieved neither separation think it is no accident that President Medvedev of powers nor a balance of powers.’ Discuss.” is actively involved in dealing with financial Students would have understood that coded and economic flows on an international level. language to ask for descriptive and normative He understands that without this, we cannot evaluations of both horizontal power struc- modernize and break through to a new qual- tures; that is, between branches of the federal ity economy, given our broken economy and government, and vertical power structures, be- weak statehood. But there is another tendency tween federal and regional governments. What as well. The same President Medvedev is also would a good answer have looked like in the under pressure from groups arguing that the spring of 1995? constitutional framework should be fleshed out Well, any able student could identify a va- with the elements of a mobilization economy. riety of hortatory and prescriptive provisions To achieve a breakthrough, they say, the gov- in the text of the Constitution, some scattered ernment must curtail the democratic and free- legislation, and a few judicial opinions. The market institutions and rely instead on admin- better students might have concluded that, on istrative powers. its face, the Constitution’s super-presidential Russia again faces a very serious choice, and system did not seem to separate or balance not because retrograde or undemocratic forces, power particularly well in either a horizontal whoever they are, have taken power. In fact, or a vertical direction. Dangers lurked in am- this is an objective choice: how to achieve a bivalent language and yet-to-be-used levers of qualitatively new level of modernization and power. But, the very best student would have how to make this qualitative jump? The op- continued. She would have observed that the tions are well-known. Should we use demo- question asked what had been achieved, not what cratic yet complex market institutions (com- the mere text of the new Constitution had de- plex in the sense that regulating the market scribed. Her essay would have included an assess- in a globalizing economy is an enormously ment of the effects on federalism and the sepa- complex task)? Or should we follow the sim- ration of powers of an emerging party system, pler, more familiar path of placing everything a history of regional claims to sovereignty and under the control of the government and autonomy, and the de facto weakness of federal focus on the so-called mobilization economy? power in the mid-1990s to demand blood and Thank you. treasure from regional powers like Mintimer Shaimiyev in , Murtaza Rakhimov in Jeffrey KAHN , or Mikhail Nikolaev in Sakha- In the spring of 1995, Oxford University was Yakutia, not to mention the then ongoing first just beginning to give final examinations to war in Chechnya. the first students to undertake tutorials in a This student would not have begun her course titled “Soviet and Post-Soviet State and analysis on December 12, 1993, when the Law.” Soviet law had been studied for decades Constitution was ratified under dubious con- at Oxford, but post-Soviet law was new and at- ditions, but rather on August 10, 1990, when tracted only a trickle of students. They stud- Boris Yeltsin, then Chairman of the RSFSR ied under the extraordinary Professor Bernard Supreme Soviet, addressed political elites in Rudden of Brasenose College. At the exami- ’ and urged them to “take as much in- nation, copies were provided of the then-brand dependence as you can hold on to,” words re- new 1993 Constitution, part I of the Civil peated a few days later in Ufa with the more

54 / THE RUSSIAN CONSTITUTION AT FIFTEEN popular variant, “take all the sovereignty you especially those passed at the start of Vladimir can swallow.” In that ambiguity between inde- Putin’s first term as president. As you know, pendence and sovereignty was planted seeds of these federal laws and presidential decrees ended confusion that continue to haunt Russian feder- the bilateral treaty process. One statute ousted alism. Independence and sovereignty, of course, regional governors and parliamentary chairmen are not the same thing, especially in the context as ex officio members of the upper chamber of the of a federal system. But operating within the Federal Assembly, the Council of the Federation. defective federal shell of the Soviet Union, the By decree, federal districts were created that difference went unnoticed for awhile. broadly overlapped existing military districts. This student would have observed how that Federal overseers, men who were mostly of high speech unleashed a torrent of declarations of sov- military rank, were appointed by President Putin. ereignty from the regions. These declarations— Another statute gave the federal president pow- although of no legal significance—had real re- ers to dismiss regional executives, regional legis- percussions. Some regions paid taxes, delivered latures and municipal governments. In addition, conscripts, and enforced federal law while other President Putin acquired the statutory power to regions did not, seemingly with impunity. As appoint regional executives himself (thus ending different regions took different views of what all direct elections for heads of regional govern- their sovereign status meant, this affected the ments throughout the Federation). Other than negotiation of the first Federal Treaty and the the federal president, the only remaining execu- 1993 Constitution that ultimately repudiated tive officials subject to direct, popular election the more decentralized bargain that that treaty are mayors. had struck. Some regions felt betrayed by the Even more recent legislation has ended di- rejection of a treaty that they felt had established rect representation of single-mandate constitu- the foundations of a new relationship with encies in the lower chamber, the State Duma. Moscow. One region actually sought to secede. The cumulative result, therefore, is that every And more than half negotiated special bilateral region of Russia now has a chief executive relations with Moscow that established varying nominated by the federal president and remov- degrees of fidelity to the constitutional division able by him, and no region of Russia has any of powers and subject-matter jurisdiction. The direct representative to the Federal Assembly legal status of these early bilateral treaties was as with anything remotely similar to an electoral shaky as that of the declarations of sovereignty constituency in that region. That shift from po- that preceded them. Some of them were signed litical accountability to the people—whom the in secret, none of them were ratified by legisla- Constitution repeatedly describes as the bearers tures at any level. of sovereignty and the single source of power in None of this, of course, was immediately ob- Russia—has deprived the Russian Federation of vious or predictable from a facial assessment of one of the core protections in a federal system constitutional text. Federal structure could create against over-centralization: the political pro- power, and create limits on power, as important cess. There exists what Associate Justice David as more easily identified textual commands. Souter of the United States Supreme Court re- History, too, could inform how both textual ferred to as “the political component of federal- and structural constitutional claims should be ism.” In words that referenced the “founding assessed. Such constitutional glosses are com- fathers” of the American federal republic, but mon, especially in systems of government as which sound eerily prescient for a Russia then complicated as federal systems. flush with petro-, he underlined how But that was years ago. What if the same important this was for a federal system. Politics, bright Oxford student were to write on the same he wrote, “should mediate between state and examination question today? The essay would national interests as the strength and legislative look very different. She would probably not lin- jurisdiction of the National Government inevi- ger very long with the text of the Constitution tably increased through the expected growth of before describing a succession of federal , the national economy.”

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 55 The student may well have described these you can swallow.” But it had not, indeed could measures as part of the swing of a pendulum, a not have had the intention of resolving the un- reaction to the extreme weakness of the federal derlying philosophical differences between fed- center under Yeltsin and increasing legal con- eral and regional elites: Was this a federation fusion caused by his parade of bilateral treaties based on a constitution or a treaty? Was this a and agreements. The student would also now federation in which the regions were granted have plenty of federal Constitutional Court their governing authority by a supremely sover- opinions to evaluate. He or she would have eign Moscow? Or was it Moscow that derived noted the Court’s early ambivalence about is- its limited powers from regions that had ceded suing rulings about federal-regional relations, some, but not all, of their sovereignty to the the inconsistency of its early opinions and their center? In other words, Russia did not adopt a low rate of compliance under Yeltsin, followed federal system based on an agreed foundation of by the Court’s more aggressive enforcement of the most basic principles of federalism. President Putin’s so-called federal reforms. The The inherent attraction of federalism student would note that what had been achieved is that, to borrow a phrase from Associate was not solely a function of constitutional text, Justice Kennedy of the United States but owed much to political forces and to the Supreme Court, federalism “split the atom of unhappy memory of the 1990s. The text of the sovereignty.” That idea unleashes opportunities Constitution was sufficiently vague to permit for spectacular innovation, generates dynamos an extraordinary shift of power between the for economic progress, and establishes overlap- regions and the federal government without ping forums for democratic self-government. It any significant amendment at all. But this shift creates economies of scale and a whole much was accomplished by devaluing structural con- greater than the sum of its parts. Federalism straints on that text placed on it by core prin- creates multiple sources of sovereignty within a ciples of federalism. single state, endowing or preserving each sov- In my book, which was published in 2002, ereign entity with spheres of authority that are I observed the start of this swing of the pendu- simultaneously co-ordinate and independent. lum during Putin’s first few years in office. I The regional and federal governments are de- forecast that this malleable constitution, on its pendent on one another, and yet each possesses own, would no more stop extreme centraliza- jurisdictions constitutionally protected against tion under President Putin than it had stopped intrusion by the other. the extreme decentralization of federal-regional This division of sovereignty has another ad- relations under President Yeltsin. At least part of vantage, particularly important for Russia. As what was required was the strengthening of fed- Associate Justice Sandra Day O’Connor noted: eral and regional institutions to ensure that fed- “Federalism secures to citizens the liberties that eral and regional powers respected the spheres derive from the diffusion of sovereign power.” of authority of each, and a strong, independent Put another way, also in O’Connor’s words, “A Constitutional Court that could interpret the healthy balance of power between the States Constitution with integrity and fidelity to both and the Federal Government will reduce the the text and the structural principles embedded risk of tyranny and abuse from either front.” In in that document. The likelihood that even this the structure of federalism is thus a protection wish list would suffice, however, was under- of individual rights that can be more potent mined by the failure of federal and regional po- than their mere identification in a list. In other litical elites to come to a consensus about exact- words, text alone does not protect liberty, con- ly what those structural principles actually were stitutional structures do, too. and in what foundational document they were Those structures are almost gone in Russia. to be found. Vladimir Putin’s so-called dicta- At the request of the International Academy torship of law had certainly ended the parade of Comparative Law, I wrote a report last fall of declarations and bilateral treaties launched by (co-authored with Alexei Trochev and Nikolay Yeltsin’s famous call to “take all the sovereignty Balayan) on the unification of law in the Russian

56 / THE RUSSIAN CONSTITUTION AT FIFTEEN Federation. I presented our findings in Mexico housing, collection of taxes and customs du- City four months ago, as part of a larger proj- ties, and the regulation of government budgets. ect that compared the unification of law in 23 Even the form of government within the region federal systems worldwide. The conclusions of is not the exclusive prerogative of that region. both our national report and the general report My colleagues and I were hard pressed to iden- are startling when considered in Russia’s his- tify meaningful spheres of jurisdiction within torical perspective. Compared to other federal the exclusive sovereign power of the subjects of systems, Russia’s legal system is among the most the federation. With the exception of certain unified in the world. It is almost certainly the limited controls over linguistic and cultural most centralized system in the world that still practices, these do not appear to exist. From claims to be federal. the point of view of federalism, this is a terri- The text of the Constitution identifies eigh- ble state of affairs. As then-United States Chief teen subjects over which jurisdiction is al- Justice William Rehnquist observed, a federal located to the central government. Fourteen constitution “requires a distinction between subjects are allocated to the joint authority of what is truly national and what is truly local.” the central government and regions. Subjects The current relationship between Moscow not specifically allocated are left to the regions. and the regions is a relationship that I am no Notwithstanding this division, all of these sub- longer certain may be described as federal in ject areas are, for all practical purposes, under any meaningful sense of that word. It lacks the control of the central government to the now many of the structural features of federal- degree that it desires to exercise such control. ism that I have identified: a division of sover- The default rule in Russia is that that ques- eignty in which each entity is simultaneously tion—what is inherently local in nature—is a co-ordinate and independent; a political com- question for the central government alone to ponent that protects this division between what decide. Therefore, all laws and normative legal is truly national and what is truly local; and acts of the regions in areas of joint jurisdiction an understanding that in dividing power both must be issued in accordance with the federal horizontally and vertically there is a structural law on the issue. The Constitutional Court has protection for individual rights that manifests upheld the central government’s view that in itself as much in regional legal distinctions as in areas of joint authority, the central government autonomy. Russia today presents an example of takes the leading role in establishing the space what can happen when constitutional text is in- left for local law-making, even when that space terpreted in a vacuum, with too little attention is a null set. No historical or structural gloss ap- to identifying these foundational principles, and pears to temper this engorgement of power. little attempt to make structural and historical Federal law often operates throughout Russia arguments to interpret constitutional text with directly, unmediated by regional law. Thus, the fidelity to those principles. Arguments and con- law of contracts, torts, property, business or- clusions drawn from constitutional structure ganizations, and other aspects of private and and history are as valid and as important tools commercial law (subjects that other federal sys- of constitutional interpretation as argument tems may leave to the jurisdiction of the com- from the plain meaning of the text. Indeed, ponent states) are all governed exclusively by structure and history stabilize a text and pre- federal law. Through a system of codification, vent the sort of pendulum swings that we have the central government regulates all civil law, seen in Russia. But these tools—as important civil procedure, criminal law, criminal proce- to a legislature as to a judiciary—have not been dure, administrative law and procedure, and used in Russia. And the longer they go unused, the procedure for use in the commercial courts. the more difficult their use will become. Let There are federal codes governing the use of me give you one example. land, air, water, and forests. Federal codes also In December 2005, the Constitutional Court govern all labor law and family law. There are upheld the constitutionality of President Putin’s codes for the citing and construction of , new power to nominate governors for regional

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 57 confirmation, thus ending their direct election. what is truly local. Federalism, although found Will Pomeranz has written an excellent analysis in many variations in many countries, does of this case that you will soon be able to read in have a certain base meaning. There is more to Demokratizatsiya, but let me briefly note some of a written constitution than the plain meaning the opinion’s features and omissions. The Court of its text. And yet the Constitutional Court of noted the variety of direct and indirect ways the Russian Federation has found it relatively that the Constitution provided for filling fed- easy to subordinate those principles to the prin- eral executive and representative offices: some ciple of the “unity of the system of state power” elected, some ex officio, some textually pro- in Articles 5 and 77 of the Constitution. That scribed, others left to be established by statute. phrase would seem to be best understood as “Thus,” the Court concluded, “the possibility limited by federal principles rather than as plac- of different variants of endowing with author- ing a limit on federal principles. Read in the ity organs and offices of public power, which context of a federal constitution, that language are not directly named in the Constitution of does not necessarily lead one to support the idea the Russian Federation as elected,” leaves open of an “executive vertical.” the possibility of change as to how to fill these In conclusion, let me say this. You will have positions. The Court concluded that if the text noticed that I have flecked my remarks with is silent, this alteration is constitutional. quotations from justices on the United States But the Court never mentions provisions Supreme Court. I did this deliberately, per- of the Constitution that support the broader haps unduly provocatively, but not to suggest structural protections of federalism against the that American federalism is a model for anyone drumbeat of a unified executive. For example, to follow. American federalism is probably the the Court concludes that regional executives worst possible approach for Russia or any other are “links” in the chain of a “unified system multi-national, multi-ethnic, or multi-lingual of state power”. Thus, regional executives, it country. These justices are not talking about says “stand in relations of subordination direct- American federalism, they are talking about ly to the President of the Russian Federation” principles of federalism in the abstract. These based on the latter’s direct, nationwide popular principles include: that there be a meaning- election. But this interpretation would render ful distinction between what is truly national Article 85 of the Constitution meaningless, and what is truly local; a political component since this article limits the President’s powers of federalism that creates multiple levels of di- to resolve differences between federal and re- rect political accountability; that power is suf- gional organs of state power to that of “concil- ficiently diffused to protect individual liberty iatory procedures.” Such a limitation would be from attack by either local or national powers. strange indeed if regional executives were mere What is more, these justices made these subordinates of the federal president. arguments not by looking to the text of an This manner of reasoning—deriving per- American document, but by looking at the mitted avenues of organizing state power from structures that a federal constitution creates. the absence of textual restrictions—is to recast The word “federal”, after all, is not to be found a constitution as a mere code. But the plain anywhere in the text of the U.S. Constitution. meaning of the text, or the absence of any text, Each quotation is from a case decided in the last is not the only source of constitutional authori- fifteen years (i.e. during the new era of federal- ty. The structure of the Constitution establishes ism that it was hoped the Russian Constitution prohibitions as forcefully as the text can. The had introduced). The Russian Constitution federal structure and recent has been interpreted with insufficient atten- provide strong arguments against such a read- tion to these principles of federalism, principles ing of the text. derived as much from its structure as from its I have already mentioned the political com- unique recent history as from its text. Instead, ponent of federalism and the need for genuine the Constitution’s text has too often been over- distinctions between what is truly national and privileged and read in a vacuum to render in-

58 / THE RUSSIAN CONSTITUTION AT FIFTEEN terpretations that are ahistorical and contrary to will develop that counteract and even to some the structures of the federal state that it pur- extent erode the new institutional pattern. This ports to create. is a hyper-centralized federal system now, but The Oxford exam I mentioned at the start of are there also limits to central power? my remarks included more than one opportuni- My sense is that in that huge constitutional ty for the student to discuss Russian federalism. area of shared or joint jurisdiction, which is two- The very next question on that exam provided thirds or even three-quarters of the activity of a quotation from the great Dutch scholar of the Russian government, the actual allocation Soviet and Russian law, Ferdinand Feldbrugge, of responsibilities and even budget with each re- who rightly concluded: “The Soviet Union was gion or republic is negotiated. Whether you call a unitary state which masqueraded as a federa- it a treaty or not, what the federal law has done is tion.” The student was asked whether he agreed set up procedures and principles in those laws of with this assessment and whether things in 2002-2003 after the close-out commission, but Russia were now different. The able student in not uniform standards or patterns. So you can 1995 might have pointed to the disparity be- take an area like education, and different subjects tween formal Soviet structures and actual prac- of the federation can have different arrangements tice to draw conclusions about that entity, but with the federal government over who is going accept the invitation of the question to advance to administer different aspects of the educational a more optimistic view based on the text of the system and so on, and so forth. I am interested in new Constitution. your perspective on that. There is little reason for optimism about federalism in Russia in the near term unless, QUESTION like Mikhail Gorbachev in his time, Dmitry Another area where there may be more decen- Medvedev should surprise us in his. The tralization than we think involves the account- Constitution has thus far escaped substan- ability of governors. I remember when I read tial amendment by way of Chapter 9 of the about new appointments that confirmation by Constitution. And yet, in the short of fif- regional legislators is going to be a formal- teen years its federal structure has been almost ity. Well, I don’t think it is. Putting it another completely undone. That is a bad sign. Worse way, regional legislatures can complain to the than a constitution that is buried under the president that they do not like a governor, or weight of constant amendment is a constitution what he is doing, or may have a veto on re- that, in the face of systemic institutional change, appointment. I think in some parts of the coun- need not be amended much at all. Thank you. try we now have a situation where governors look not only to the president, but also to the Discussion local business groups who dominate the region- al legislatures and in some cases even compete QUESTION in elections. I have a feeling there is even a bit I have a question regarding Jeff’s very interest- of renewed democracy going on, although that ing talk. You mentioned a pendulum, and that may be putting it too strongly. as it is swinging back there are some indica- tions of something resembling bilateral treaties Jeffrey Kahn emerging within Russia. I would like further Those are all fine and wonderful procedures, context for such new politics under the condi- you could say. You could say that they produce tions of the current economic crisis. a certain decentralization in those negotia- tions either under the framework of those laws, Jeffrey Kahn budgetary negotiations, or in the framework I was going to raise a possibility that when you of negotiated bilateral treaties. Again, under a have a swing of the pendulum that goes so far new law, a new federal law, you could say all that it does not match the needs and realities those things, you could say that this is success- of the society then, in fact, informal practices ful, this is a new model for Russia, you could

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 59 say it ­creates elements of democracy. But I when a business comes into a region and they don’t think that you could say that it creates are asked to participate in the social sphere to a federal system. What is federal about that? contribute. This is a negotiation of taxes, - Because at the end of the day, if the nego- fectively, with regional authoritites. Regions tiations sour, that joint power, that joint au- are now negotiating with the center. To what thority under the Constitution, ultimately is extent can we have this in a legal system? When decided by a federal code. does too much negotiation move across that line and erode law itself? QUESTION Isn’t that the case in Germany? I am not sure. Vladimir MAZAEV In the German model, a lot of the main domes- As I already said, this is an element of non-eco- tic functions are in shared jurisdiction. Now, nomic compulsion and it is a cost of the ad- maybe it is the case that a lot of this is still left to ministrative system that we have. Everything the governments of the Länder [Germany’s 16 depends on how burdensome these methods of states] to define, I don’t know. compulsion are, because the authorities have many different methods. For example, allocat- Jeffrey KAHN ing land or even offering financial incentives And I don’t know either. But I guess I would from the regional budget—this broad range say there is a cumulative effect going on in two of administrative tools gives the regional offi- dimensions. The first dimension is, suppose cial the power to have such conversations with that you would just have that provision alone businesspeople. And if the official’s demands and nothing else has changed. In other words, and desires are not too burdensome, the busi- we still have directly elected governors. Maybe ness will generally agree to cooperate. We call it would be more difficult for me to say, “It it “a public-private partnership with elements is hard to imagine this is a federal system any of non-economic compulsion.” more.” But this on top of that on top of the Now I would like to say a few words about third has a cumulative effect, because it is not the economic aspects of federalism. I used to just one structure of federalism that is weak- be involved with federalism: in the Supreme ened while other pillars of support remain. All Soviet I was responsible for issues involving the of them are weakened and you might say, if you national structure. First, I would note that the were extreme, I suppose, that they are gone. government’s feedback channels are open. In As to the German case, the second point the last few days President Medvedev and the I make is this: I am not trying to prescribe State Duma acted on proposals by the esteemed American federalism on Russia. I realize there Speaker to change the way the Federation is a lot of variance within the family of federal Council is formed. Now only elected members systems. But they all share the common prin- of regional legislative assemblies can be selected ciple that each sovereign entity has exclusive for the Federation Council, so that they will be constitutional jurisdiction over some spheres accountable to the voters. of authority and coordinate spheres of author- Secondly, we now have federalism, primar- ity elsewhere. The political scientist Morton ily the economic aspects of federalism, which Grodzins famously described federalism not as are described in detail not in the Constitution, a layer cake of municipality, region, and federal but in the laws—for instance, the federal law government, but as a marble cake. on the legislative and executive bodies. As you know, the Constitution enumerates the exclu- QUESTION sive powers of the Federation, the exclusive How much negotiation can you have between powers of member entities of the Federation, entities, whether they are individuals operat- and certain joint powers, about which there are ing under the law or state units, and still have always arguments over who does what and how law as the dominant force? I am thinking about they interact. The law lists issues of joint au- Mr. Mazaev’s comments about what happens thority to be exercised by the member entity.

60 / THE RUSSIAN CONSTITUTION AT FIFTEEN This list is limited. Any change in the powers the RSFSR was the law on freedom of con- of the member entities must be reflected in an science. I was involved in the drafting of this amendment to the law. The exercise of these law. The working group on this law included powers also involves budget appropriations and members of parliament who represented all allocations of property. The same system oper- the major churches in Russia. The signifi- ates at the municipal level. cance of this was enormous. As for the exist- The federal authorities have decided to ing Constitution, Mr. Lafitskiy was directly simplify this process and link it to the bud- involved in this issue. get. This portion of the law is amended most often, because the regions often get together Vladimir LAFITSKY with Moscow to discuss adjustments to their Indeed, I was involved in that, although authority and the allocation money that they not as actively as I would have liked. In are given to implement their authority. It is a Russia, we have built what Jefferson called continuous process of discussion and interac- a “wall of separation between the State and tion, which results in periodic amendments to the Church.” This Russian wall was much the law. In other words, there is both discussion higher than the one in the United States. In and cooperation. I have been involved in this the United States, the church has always ei- process, and I have seen what the regions are ther been involved [in government affairs], most often unhappy about: “You give us these or have received some type of support from powers, but no money to exercise them, or not the government. This has not happened in enough money.” Russia. Only recently the church began to For example, Moscow had the authority to take the first steps toward asserting itself, if maintain ponds and other bodies of water in not in politics, then in public life. This pro- Moscow. The Federation assumed this power cess is happening with great difficulty. It for itself, but delegated the management of these would be premature to give an assessment of ponds to Moscow. At the same time it gave the it now. Many positive things have been done, city ten times less money to maintain the ponds. but just as many negative things have been In response, Mayor Luzhkov said: “Either give done as well. So there can never be an unam- me the full authority and I will find the money biguous answer to your question. With time, to maintain the ponds, or take the authority and perhaps, we will see how positive or negative do it yourself. The money you propose is barely this role has been, but it is too early to tell. enough to maintain one pond.” This is why no contracts are being signed for such projects— QUESTION there is a continuous debate about the financing I would take you back to the questions about and the budget. federalism. As was described, when the budget arrangements were made between the federal QUESTION government and regions, was there also at- I would like to address my question, if possible, tached to that budget specific objectives that to the drafters of the Constitution. I would like were to be achieved that were mandated by the you to appraise the nature, scope, and influence federal government along with the purposes of the involvement of the Russian Orthodox of the fund? If so, I recall some of the descrip- Church in the drafting, adoption, and imple- tion of the dissertation that was attributed to mentation of the Constitution and the strength- President Putin, which drew from a planning ening of the rule of law in Russia. document by two professors at the University of Pittsburg describing a system in the United Vladimir MAZAEV States during the Nixon administration known Who has the courage to answer this ques- as “management by objectives.” Some of this tion? While my colleagues are getting ready, sounds very similar to that system, particularly I would like to mention that in 1990, one of if there were federal objectives that were to be the first laws enacted by the Supreme Soviet of met with that budget.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 61 Vladimir MAZAEV ply is not a unitary government there anymore. I will try to answer your question, although So is there another possible model? I am not an economist and am not involved with the budget. The fact is that this phrase Jeffrey KAHN did find its way to Russia. As I said before, all It is perfectly true that federalism, at least as of the money in a region’s budget is targeted known in our time, was created by the “found- for a specific purpose and can only be used for ing fathers” of the United States, who drafted that purpose. Primarily it supports programs a federal constitution, because the word did within the region’s authority. The federal gov- not mean before they used it what it meant ernment also strictly targets the money that after they used it. That said, the word in the it appropriates for the implementation of fed- Russian Constitution seems to suggest federal- eral programs or for the exercise of some or ism as known at the time of the creation of that all federal powers. It is the same on the mu- Constitution. There is no indication that they nicipal level. This system emerged because were trying to create something brand new but in the 1990s regional and local officials spent call it by an old name. money very inefficiently and ineffectively. It is also true that there are many differ- Occasionally, they simply stole it. As a result, ent types of arrangements for power, devolu- strict targeting of funds was imposed. If you tion of power, and the is look at the statistics of the mayors and regional one. I was mildly surprised to discover that the leaders who have been prosecuted or removed International Academy of Comparative Law from office, the most common reason is use of considers the United Kingdom a federal system, funds for other than their intended purpose. I did not think it was. I think reasonable minds Dozens of mayors of large and medium-sized can differ, but the point of my remark is to sug- cities have been prosecuted or removed from gest that this is going too far. And so it is not office for this reason. to say that the inventions cannot continue, nor Indeed, the key problem in Russia is to what is this to say that federalism may be the only extent funds are being used for other than their model, or centralism is the only model, it is just intended purpose. We have many enforce- that I am interpreting this particular document, ment agencies, and the Audit Commission has I am trying to use as many constitutional tools its own idea of the extent of the problem, as as I can, and I cannot make the round pegs fit does the enforcement divisions in the Ministry into square holes. of Finance and the office of the president. This is a problem of harmonization of the oversight QUESTION standards when it comes to the expenditure of I wonder if our speakers might make a closing public funds. comment on the relationship of some of the problems we have been talking about with fed- QUESTION eralism, as it has been the focus of this discus- I just had one question about federalism ver- sion, and on other areas of law. In particular, I sus the central model. I know that there are was thinking of Professor Mazaev’s comments many kinds of federalisms. Russia seems to about the need to go and speak to regional be working towards one that will function for heads or governors or other officials when you them. Yet I wonder what if you told that to the want to start a business. Then there is the prob- American writers of the U.S. Constitution? lem with unfunded mandates. Whether it is They had no model for for a federal govern- a problem with the distribution of moneys or ment, but they thought one up and created it. with the level of authority granted to regional I think that was the virtue of their actions. But or local authorities to collect funds adequate to I wonder whether there might be some way to their tasks, you have got people in positions ex- construct a model using devolved powers. We pected to perform a variety of tasks for which have seen a nasty conflict in Northern Ireland they have no budget. It is not terribly illogical resolved without federal means. And there sim- to imagine that they are going to start putting

62 / THE RUSSIAN CONSTITUTION AT FIFTEEN pressure on businesses coming in to perform was minimal. The courts did not have funds some of these tasks for them. even for basic supplies like paper and pens. That would be an area of law where one They could not conduct court proceedings. might see the defect of federalism affecting, let’s So here is how one judge dealt with this sit- say, private property rights. You have people uation: he made an arrangement with the local coming in expecting to be able to open business- police chief who collected money for the court es and go through normal legal procedures—to from drivers on a federal highway. Another register land use, to do all of these things— judge drove around with his driver and col- and they find themselves being pressured to do lected scrap metal to sell. He sold the metal things that are not within law because of the and donated the money to the court. This was effects of these federal arrangements. the situation when there was no money in the Another example in a different area of law ­federal budget. Now the situation is different. It might be the kinds of things that happen when is true that municipalities and member entities courts decide that federal considerations are not of the federation receive insufficient financing sufficient to restrict local or regional elections to to perform their functions. Those that are will- those who are citizens or residents of the local- ing to wheel and deal, as we say, find a way ity or region, despite the fact that anyone elected out of the situation, including by extralegal and from half-way across the country, whatever their non-economic means. federal connections might be, may know little or I would like to give another example show- nothing about the region in question. ing that courts do not always come to the de- Or courts can make decisions that a local or fense of the governors. For example, just a few regional government cannot independently pur- days ago, a very well-known judge, the presid- chase goods or services without allowing busi- ing judge of a court of arbitration in Moscow, nesses or people from anywhere in the Russian was removed from office for conflict of inter- Federation to compete and receive that contract, est. She had received some benefits from the even if the money has been collected solely from Moscow government, and then heard a case local sources and the region might prefer to de- involving Moscow’s interests. As you see, the vote it to local sources for regional development trends are getting more complicated and am- purposes. I wonder if anybody thinks that the biguous. Thank you. pressure for correction in some of these other areas of the law might help move federalism is- Jeffrey KAHN sues toward other kinds of resolutions. Or per- I would just add the obvious point that the haps the reverse— might pressure as result of the frustration you describe of giving people au- Federal Commission’s work produce improve- thority and responsibility without mechanisms ments in these other areas of the law? to achieve the result, or the converse, isn’t ex- clusive to a federal system and the same could Vladimir MAZAEV easily happen in a centralized system, and the Thank you for the question. I would say that effect of judicial decisions that would create everything you have said is true, and even more those perverse incentives would certainly be so. Many different things have happened in destabilizing to a federal system, but also to a Russia, especially in the mid-1990s. Still, the centralized system. The problem that I see is trend is positive from the point of view of the that when changes are made to the meaning complexity and the types of problems in the of federalism in a constitutional system by just process. In the mid-1990s, I had two friends regular statutory law, it is very hard to see how who were district court judges. At that time fi- change would percolate up in a reverse fashion nancing for the courts from the federal budget and undo that law.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 63 PANEL IV Globalization and the Role of International Law

Oleg RUMYANTSEV ested in the protection of property rights of the Let us turn to the question of the Russian religious organizations, which would be guar- Orthodox Church and its role in the drafting anteed by law. That was important, and I dis- of the Constitution. Let me tell you that this cussed it several times with Metropolite Kirill. has been a challenge. During early 1990s, at But the Constitutional Commission decided a time when radical democratic thinking was that we should include this into our Section 3. overwhelming in the Russian parliament, the On the contrary, the government cannot trans- was an institution fer to the religious organizations any of its gov- that was also in a stage of emancipation from ernment functions. It is very clear in the current the previous times. I personally have estab- situation that the Russian Orthodox Church is lished very close and fruitful relations with trying to get some of the state functions. Patriarch Alexei himself and with Kirill, who I will not cite all of this, but please remem- is the current Patriarch, and we had a very ber Articles 62 and 65, which are devoted spe- interesting exchange of opinions. These blue cifically to the rights of the religious organi- volumes, which I highly recommend to you to zations. And today, the current Constitution’s have in your library—this is a bit of an adver- Article 28 is a very shallow, very weak article, tisement here, I am very sorry; those who are unfortunately. This is a result of the “short con- from institutes and universities, please, write stitution” concept. to the Russian Foundation for Constitutional Our next panel is on “Globalization and the Reforms ([email protected]) and order this set of Role of International Law in the Development ten volumes. These volumes contain this cor- of the Russian Constitution.” I think it prom- respondence with the Patriarch. ises to be a very important, a very interesting I am very proud of Section 3 of the draft session, and our first speaker is William Butler, of our constitution, which was called “Civil John Edward Fowler Distinguished Professor Society.” Unfortunately, people like [former St. of Law, Dickerson School of Law, Penn State Petersburg Mayor Anatoly] Sobchak were fruit- University. The theme is Russian Law and the ful in fighting our Section 3. It had all the nec- International Legal System. essary limits on state intervention into the civil society institutions and, on the other hand, it William BUTLER had all the necessary constitutional guarantees Thank you, Chairman. When Will Pomeranz for the development of civil society institu- first approached me about this conference, he tions. It was extremely important in our case, said I would be on the last panel. “We will save but, unfortunately, those who thought that the the best for last,” he declared, and I notice he [draft] constitution was too long, too detailed, has now moved himself down to last position. and that civil society is a philosophic category I would actually reverse the name of this succeeded in crossing out that section. panel slightly, at least for the purposes of my However, there are Articles 62 and 65 on re- presentation. Rather than speak about glo- ligious organizations, and it is interesting that balization and the role of international law in the Russian Orthodox Church was very inter- developing the Russian Constitution, to my

64 / THE RUSSIAN CONSTITUTION AT FIFTEEN mind the question is rather: the role of the 1993 CIS. I know of no other countries in the world Russian Constitution in the development of which have codified that distinction in the way globalization and international law. I have in that the CIS jurisdictions have done. mind, of course, Article 15, particularly Article It is an obvious distinction to make; 15(4) of the document. To remind you, as I am there are constitutional reasons, logical rea- sure not all of you recollect what it provides: , why one should draw such distinctions. “Generally recognized principles and norms International law, however, does not draw of international law and international treaties those distinctions. Any treaty, oral or writ- of the Russian Federation shall be an integral ten, entered into by the state, by a state of- part of the legal system.” That is the novelty ficial within his competence, is binding upon in the provision. The second sentence came the state as whole. Therefore international law straight out of Soviet law: “If other rules have is indifferent as to at what level a state chooses been established by international treaty of the to engage its international legal responsibility Russian Federation than provided for by a law, vis-à-vis other states. the rules of the international treaty shall apply.” Many, perhaps most, Russian jurists, espe- This last phrase is, in effect, a primacy clause cially those of a constitutional persuasion, rec- for treaties. ognize the hierarchy of sources of law. This is I personally regard Article 15 and particularly the first occasion that I have spoken to a group these passages of 15(4) as the most transformative of Russian constitutional lawyers on this matter, provisions of the 1993 Russian Constitution. If and they may hold views on this that differ dra- I had to choose a single article that I considered matically from my own. There have been pro- the most important in the Russian Constitution, posals to enact a Federal Law on the Normative I would select Article 15. Legal Act, or on the hierarchy of normative To be sure, the fathers of the Russian legal acts, or on the sources of legislation bear- Constitution did not make an omission, which ing various titles. I am told by Professor Boshno the fathers of the U.S. Constitution did: they at the Russian State Civil Service Academy included human rights the first time around. that there is renewed interest in a draft that was They did not have to resort to ten subsequent originally discussed in the mid-1990s and then amendments in order to take account of them. tabled after first reading. A number of CIS ju- But a number of issues have been raised by risdictions have enacted such laws, but not all. Article 15(4). They are interesting issues. They If I recall correctly, each of these laws that I will not be resolved by the stroke of a pen. They have examined made no mention of treaties as will need to be addressed in the jurisprudence part of the hierarchy, which is a rather serious of the courts and the administrative practice of omission even if they do not have a constitu- the presidency, of the government, of all of the tional provision exactly like Article 15 of the associated ministries, and of the parliament it- 1993 Russian Constitution. self, in my view. At least, I shall make this argu- Therefore, the question always is and will ment this afternoon. always be: where exactly does a treaty fit into There is a question in Russian law of the preexisting legislation on a subject or, for that hierarchy of treaties in their relationship with matter, subsequent federal or regional legisla- legislation and as to themselves. You may re- tion on a subject? Should it matter, does it mat- call that the 1978 USSR law on treaties intro- ter, and if so, to whom? At what level has the duced a classification into legislation which had treaty been concluded on the Russian side? long been identified in doctrinal in From personal experience I can attest to a the USSR and abroad: namely, the distinctions number of examples over the years of what I among inter-state treaties, intergovernmental would call positive experience and negative treaties, and interdepartmental treaties. That experience. I have seen internal regulations classification has been carried over into Russian from the Ministry of Finance, which in the legislation and, I can confirm to you, the legis- late 1990s denied the binding force upon it of lation on treaties of every single member of the double-taxation treaties entered into by either

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 65 the former Soviet Union or by the Russian it is the judicial practice of all Russian courts Federation. The reasoning was absurd, but they of relevance—the Constitutional Court of the were telling clients, interested foreign parties, Russian Federation, the arbitrazh courts, and who claimed protection under the treaty that the courts of ordinary jurisdiction—that is of as far as they were concerned these treaties did special interest, because these courts frequently not apply. On the other hand, I have seen other cite international acts, as they are often called. situations where the Ministry accepted that the These include treaties, sometimes general relevant treaty applied, and I would simply say principles of international law, and, fairly un- that there seems to have been a certain incon- commonly, resolutions of the sistency in application. General Assembly and other kinds of “soft law”, I return to Article 15(4) for a moment: “gen- as we international lawyers call them. These are erally recognized principles and norms of in- international acts that do not have the formal ternational law”—those are not treaties? They status of treaties, but are something less. might be found in treaties, evidence of them Nonetheless, acts of “soft law” often reflect may be found in treaties, but we are talking the consensus of states about the existence or about customary international law at a mini- content of a particular rule. The 1948 Universal mum and possibly, in the view of many Russian Declaration of Human Rights is not a treaty; it international lawyers, something more, some- is a declaration of the United Nations General thing higher than mere customary norms of Assembly. Unless we accept, as most of us do, international law: norms of international law that it has now have been incorporated into that have achieved the stature of general prin- customary international law and that its provi- ciples. These would be regarded as more fun- sions are tantamount to the general principles damental in nature than mere treaty rules. of international law, as a document in and of Treaty rules are simply rules that are agreed be- itself it is not binding. tween states, perhaps between two states, per- Nonetheless, a number of Russian courts haps between many states, perhaps between all have cited the Universal Declaration in pass- states, although there are very few treaties that ing, and they have cited the 1966 international reach that level of universality. But the United human rights covenants, which are proper Nations Charter is close to universality, and the treaties. There is a vast repertoire of Russian 1949 Geneva Conventions on the laws of war judicial material of this nature—some pub- are close to achieving the 193 or 194 ratifica- lished, some emanating from Russian col- tions or accessions that would be required. leagues who have been into the archives of When you marry the first sentence of Article courts at the regional and central levels who 15 of the Russian Constitution to the second, it have found these cases and drawn our atten- says, “if other rules have been established by an tion to them. Indeed, I would say to Professor international treaty of the Russian Federation;” Rumyantsev that if his Foundation were look- it does not say, “if other rules have been estab- ing for another project, a very good one would lished by generally recognized principles and be to publish all Russian court decisions since norms of international law.” So, is that a limita- 1992 that made any reference to international tion on what has precedence, or is the fact that law whatsoever—a Digest of Russian Cases on generally recognized principles and norms of International Law. There is an American col- international law have a higher stature in the lection that could serve as an example. international legal system evidence that a for- But Russian experience becomes more in- tiori they take precedence over any inconsistent teresting by reason of Article 15, and as such it norm of domestic law? This continues to be de- has perhaps a larger impact in the international bated in Russia, as indeed it should. community than would otherwise necessar- Given the predisposition of our discussions ily be the case. Some explanation is required. in this forum so far, where there has been a Russian international lawyers would criticize heavy emphasis not really on the Constitution, Russian judges for citing in individual cases, for but on judicial practice under the Constitution, example, “soft law” documents. The criticism

66 / THE RUSSIAN CONSTITUTION AT FIFTEEN would be that they are mistaken, that they it is the first official publication of these trea- do not understand the difference between a ties in Russia. They have pulled these treaties treaty, which is binding, and a United Nations out of the archives and made them publically General Assembly resolution, for example, available, probably in most cases because the which is not. This criticism is fair, assuming courts are being so insistent. So far as the that the court understands the relevant docu- courts are concerned, the treaty does not exist ment in that sense. But the fact that the “soft unless and until it is officially published. That law” documents are cited actually has an im- is absolutely correct, of course. This practice pact on the international law, because that is a salutary enforcement of the provisions of amounts to a form of state practice, a form of the United Nations Charter, which encour- affirmation of the content of the document. In ages, but does not so vigorously require, the the international legal system that has mean- publication of treaties. ing and significance, even if it qualifies as what The fourth example is one which arises out we common law lawyers would call obiter dicta of issues that Article 15 seems to represent in in the Russian judicial decision itself. the minds of some Russian colleagues, particu- I do not exclude the possibility that if we had larly those who are specialists in international access to all relevant judicial materials from the law. One reason that it is sometimes argued Russian court system that relate to internation- in doctrine that only treaties that are ratified al law, we would say that many references to formally by the Federal Assembly should take international legal material were incidental and precedence over Russian laws is, of course, that not central to the holding of the court. But I do ratification itself takes the form of a federal law. not think that matters from the international In their view, to argue otherwise would mean legal point of view. From the international legal that both the government and a ministry could point of view, unless the court took issue with conclude treaties inconsistent with federal law the document, in which case it becomes even without requiring any review by parliament more interesting, then it amounts to a form of whatsoever. Parliament need not even have affirmation of opinio juris, as we call it in the knowledge of the existence of such treaties. international legal system. One difficulty that arose in U.S.-Russian ne- The third element I would draw to your at- gotiations several years back related to American tention actually resides in Article 15(3) of the assistance to Russia in dismantling nuclear mis- Constitution, although I believe it relates both siles on nuclear submarines. Much of this work in law and in practice to Article 15(4). This is was to be done at American expense and with the requirement that normative acts be pub- the use of American contractors. No American lished in order to be applied and enforced. The contractor will undertake such a project with- Russian courts have been zealous in requiring out indemnities from his government in the evidence of publication of the treaties before event of a little technical episode of some kind they will take judicial notice of their existence, or other. The government of the United States relevance, or application. There are a number routinely gives indemnities of this kind if the of decisions where they have refused to apply project work is performed on U.S. territory. In a treaty in force, because the parties could not Russia, however, the Civil Code provides that produce an official text of the treaty, as they are liability attaches to any source of increased dan- required to do. ger, and the nuclear industry is by definition One outcome has been, if you follow the such a source of increased danger. So the sug- Bulletin of International Treaties, which is an of- gestion was that the United States Department ficial source in Russia published monthly by of Defense and the Russian Ministry of Defense the President’s Office and Ministry of Foreign conclude a little inter-departmental treaty Affairs, is the publication of treaties that were which would abrogate that provision of the ratified several years ago, even decades ago, Civil Code. Then it was suggested to them that including treaties with the United States and such an interdepartmental treaty might not be with the United Kingdom. In each instance such a good idea: this would be circumvention

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 67 of an imperative provision of Russian law, one not have been one of the founding fathers of that is absolutely central to the Russian under- the Russian Constitution because, as President standing of obligations arising out of the caus- Gorbachev said, I was always part of his team. ing of harm. At that time there were very serious differenc- I do not know how they ultimately solved es of opinion between Gorbachev’s team and this dilemma of two legal traditions. There was the Russian parliament and the drafters of the a serious impasse for a long time. This was not Constitution—so much so that we ultimately a disagreement, but rather a question of how to ended up on opposite sides of the political bar- solve a serious difference of approach between ricades. For this reason, I am even more grate- two legal traditions on questions of liability, ful to Oleg Rumyantsev for inviting me to both of them having entirely plausible and de- take part in this discussion, because he knows fensible positions in approaching liability, but that I have had a point of view that is very coming at the question from opposite directions different from his or his fellow framers of the and being unable to reconcile their positions. Constitution. My answer to Russian colleagues who would Secondly, I am not an expert on constitu- be concerned about inter-departmental trea- tional law. I am not even a lawyer. My field is ties or inter-governmental treaties constituting world politics, which is rather far removed from a circumvention of the Constitution or other the issues being discussed here. But I think legislation is: handle them internally. Require there is a connection. The process of adopting a that there be a satisfactory level of internal re- constitution is an act of birth. It is the birth of a view of any inter-departmental treaty or inter- new political system. So it seems to me, as oth- governmental treaty, whether it is committees ers have said here, including Oleg Rumyantsev, of Federal Assembly, or the presidency itself, or who said it quite forcefully, that we need a the government, and deal with it at that stage— comprehensive, multidisciplinary approach to but then accept the treaties at whatever level the analysis of these processes. they are negotiated and concluded as falling What are the elements of this approach? First, under Article 15(4). we need experts in constitutional law. Second, perhaps less obviously, it would be very helpful Oleg RUMYANTSEV to hear from political scientists, especially those Thank you very much, Professor Butler. It was who specialize in comparative politics and the a pleasure for us, members of the Constitutional comparative analysis of the development and Drafting Commission to hear how you praised operation of political systems. Third is the field Article 15(4). The whole Article 15 about the most near and dear to me: we need experts on legal system of the Russian Federation is taken globalization, people who work in the new field directly from the Constitutional Commission’s known as Global Studies. draft, and Article 15(4) is one of the legal Why do we need this third component of guarantees for the rule of law in the Russian the analysis? Globalization is a process that in- Federation. That is why I appreciate it. Thank creasingly interacts with many other fields, in- you for your nice talk. cluding law. I would refer you to the pioneer- Next speaker is Viktor Kuvaldin, Head of ing work of Anne-Marie Slaughter, who will Department of Political and Social Sciences, soon become the director of Policy Planning Moscow School of Economics, Moscow State at the U.S. State Department. She talks about University. Professor Kuvaldin is a long-time the very intensive process of interaction that partner in the Gorbachev Foundation, so, involves not only businesspeople or politicians, please, Professor Kuvaldin. but also lawyers in a wide range of practice areas. This includes lawyers who work for gov- Viktor KUVALDIN ernment agencies, lawyers for nongovernmental Andrei Illarionov said that he happened to be organizations, and lawyers in private practice. at this interesting discussion almost by chance. Naturally, this interweaving, diverse sharing of The same is true of me. I am not and could experience among various countries has a major

68 / THE RUSSIAN CONSTITUTION AT FIFTEEN impact on the constitutional processes in each The last and, perhaps, most interesting issue individual country. is the evolution of our Constitution and how How does Russia fit into this general picture? we should assess its current status. Some of the I think that two characteristics of Russia have speakers here, including some of the framers of left a strong on its constitutional process. In our Constitution, say that it was born in very my view, culturally, Russia is a European coun- difficult circumstances, that it suffered “a birth try. But politically, it is a country that has been defect,” and that eventually it resulted in the displaced on the Eurasian geopolitical stage. I political battle that led to bloody conflict in would remind you of the simple fact that two- 1993. I agree with this analysis, but I believe thirds of our country is located not in Europe, the roots of it go deeper. I think this birth de- but in Asia. This has very important implications fect did not begin in 1993, but earlier. Its roots for the way our political system works. Secondly, are in 1990 and 1991, when considerations of Russia is European in its culture, but in terms of political expediency regularly prevailed over its political culture, I would describe it (in school respect for the law among members of the grading terms) as “Europe minus.” Russian parliament, including those who were This “minus”—that is, the things we lack— working on the constitution. is very important. We did not experience I would remind everyone here that President the Renaissance, nor did we experience the Gorbachev was removed from power in a coup Reformation. Our constitutionalism did not d’état. This could be seen as two coups d’états: one emerge gradually. We did not go through these in August by the putschists, and the counter- periods in which a great many important politi- coup by so-called democrats in response to it— cal advances, such as universal suffrage, for ex- including its second phase, the Belovezhskaia ample, became slowly ingrained in the culture. Accords [signed on December 8, 1991, which This places us among the countries that Fareed officially dissolved the Soviet Union]. This Zakaria described ten years ago as illiberal de- could be seen as a single creeping coup d’état over mocracies. These are countries that have cre- the fall of 1991. I can say this based on my per- ated democratic institutions but lack the strong sonal experience, because I was in the Kremlin foundation of what might be called constitu- at that time, as a member of Gorbachev’s team. tional liberalism. I think these events left a very strong mark. We are certainly not unique in this sense. It has been said here with an understand- Fifty one countries signed the Charter of the able sense of pride that the adoption of the United Nations in 1945. Today, the United Constitution of 1993 prevented the collapse of Nations has about 200 members. Many of the the Russian state. However, I would remind states that have entered the world stage over you that these same “founding fathers” of the that period of time are in this category of il- Russian Constitution did not raise their voice liberal democracy. when another country called the Soviet Union However, there are significant differences. was being destroyed. The Soviet Union, too, The countries that came out of the Anglo- was a Russian state, but packaged in a peculiar Saxon legal tradition, for example, are in a much historical form. This history of political expe- better position. The classic example is . It diency regularly prevailing over respect for the is a large, diverse country with a very compli- law has, unfortunately, left a powerful mark on cated history. But it has the right to call itself the Russian Constitution and the Russian po- the world’s largest democracy, despite all the litical process. Speaking here about the circum- complexities of the Indian state. There may be stances in which the Constitution was adopted, even more persuasive examples. I do not mean Oleg Rumyantsev drew a very important and countries like Malaysia, for instance, but rather thought-provoking distinction between the Pakistan. This is a country where democracy formal act of adoption and the essential adop- seems even weaker and the foundations shakier. tion of the Constitution. I am happy to discuss Nevertheless, we know Pakistan as a country this distinction, but I am not prepared to accept with functional democratic institutions. it in full.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 69 Unfortunately, we now know almost cer- way, when it is done from above with great tainly that the Constitution did not formally sacrifices and blood, but modernization in the receive the required majority of the . This normal way, from below, in the interest of the is a very serious problem, a time bomb ticking public. Thank you. under the Russian statehood, because a thing that seems merely formal can subsequently take Oleg RUMYANTSEV on huge political significance. Thank you, Viktor, for that excellent presenta- Finally, I would like to give my assessment tion. It is no accident that Viktor is one of the of the current situation in Russia. The opinion speakers here, and I would like our American has been expressed here that we have all but re- colleagues to note how well-balanced the turned to Soviet times or, in the best case, to Russian delegation is at this conference. We the early years of perestroika. I do not agree with have people with very similar views who, at this. I do not think Russia has gone through all one point or another in this historical process, of these difficult, terrible years in vain. I do not ended up on opposite sides. But we are still pre- think we have returned either to the Soviet past senting the full range of opinions of Russian or to the beginning of perestroika. constitutionalists here. Some may call them- Why? Of course, we have not had much suc- selves economists, political scientists, or experts cess in building democratic institutions. Many in comparative politics or global studies. The of the democratic gains that were achieved dur- important thing is that we are presenting this ing the perestroika of the Gorbachev period have interdisciplinary, comprehensive analysis of the been lost. They began to crumble not in 1993 events in the Russian Federation, and that is a or 1996, but as far back as 1990. But at the same very good thing. Thanks again for your excel- time, and I think this is fundamentally impor- presentation. tant, a generation has grown up in our country Our next speaker is Vladimir Lafitsky, who that is used to living in freedom. This is com- served as an expert adviser to the Constitutional monplace in America, of course, and it has be- Commission from 1991 to 1993, and is now the come commonplace in Europe. But for Russia deputy director of the State—the state, mind this is an unusual situation. We have lived you—Institute of Comparative Legislation in through Khrushchev’s thaw, which was not the Government of the Russian Federation. freedom. The only period that is comparable He was directly involved in the drafting of the to what happened after 1991 is the 12-year - constitution. Mr. Lafitsky, please. riod in tsarist Russia, from 1905 to 1917, when Russia had a dualistic regime. This, however, Vladimir LAFITSKY lasted only 12 years, not nearly 20 as we have Thank you. It is a great honor for me to speak had now; not to mention that we must also sub- here, especially because my teacher, Avgust tract from that tsarist period at least three years Mishin, also spoke here. We heard about him at of I. the beginning of this conference. I was his stu- I think it is fundamentally important that dent, and I dedicated one of my books to him. a generation has now grown up and come of So it is particularly nice that my teacher is being age, including my students at two of the fin- remembered here. Thank you for that. est universities in our country, Moscow State The topic of my presentation is the way in University and the Moscow State Institute of which the process of globalization affects con- International Relations, for whom the Soviet stitutional regimes. But before I get to that, I experience, if it has any relevance to them at all, need to make a comment. There is something is nothing but history. They did not internalize I would call “a worldwide legal environment.” it, and it did not leave its mark on them. They To paraphrase the well-known statement by are different. There is now a certain segment of the Apostle , there is no Judaic law, no our society—various estimates put it at 25-30 Hellenic law, no American law, or Russian percent—that is ready and willing to modern- law, and so forth. There is a common legal en- ize the country. Not in the classical Russian vironment that operates and evolves according

70 / THE RUSSIAN CONSTITUTION AT FIFTEEN to its own laws, which are intrinsic for every- tem. International treaties to which the United one at all times. These ideas were formulated States is a party are the supreme law of the land. back in the 18th century. The outstanding but The constitutions of other countries did not now forgotten Italian scholar Vico Giambattista adopt this approach until the 20th century. As wrote about this. He analyzed what he called Professor Butler described so eloquently, this the “era of poetic development” in human his- approach has now acquired new borders and tory and noted that the first laws were in poetic new colors. Many constitutions, not only the form. I even published a book in 2003 entitled Russian Constitution, proclaim the priority of The of Law: Vignettes in Lawmaking from international law over domestic law. That is the Antiquity to the Present Day. This is a common first mechanism. theme in the development of law. The second mechanism is the influence of If you look at the laws of various nations, you more developed and powerful countries. This will see a great deal in common. Unfortunately, influence may take various forms, including we do not study these fundamentals, because force. We recall how the revolutionary army of our law, the law of the modern world, is very France spread its constitution to many Western diverse. It is very difficult to make comparisons European countries at the point of a bayo- now, because the law is developing under the net. American forces imposed constitutions in influence of other forces and factors. The most Japan after the World War II and recently in powerful factor is religion. We know that there and Iraq. There is a difference here, is Christian law, which is common to American of course. As Talleyrand said, “You can rely on law, Russian law, and Anglo-Saxon law in gen- a bayonet, but you can’t sit on it for very long.” eral. This is Christian law based on the laws of So it is difficult to say whether those constitu- the New Testament. There is also Islamic law, tions will endure, because a constitutional re- Hindu law, and so forth. gime cannot be built on bayonets. Another very powerful factor that influences Japan is a somewhat different case. We must the development of law is national character and give credit to the wise co-authors who helped . Here is one example: In many mod- draft the Japanese Constitution. They took into ern , the word law has a close semantic account the traditional values of Japanese soci- relationship with concepts like justice and truth. ety. They preserved the existing form of govern- This link exists in the — ment, which is why the constitutional regime in we have pravo [law], spravedlivost [justice], and Japan has had such longevity and stability. Still, [truth]—just as English words like holi- the primary way in which a country can influ- ness and justice have a common . But ence the constitutions of other countries is not the Russian word pravo also shares its root with by force, but by providing a good example. pravitel [ruler] and pravitelstvo [government]. So Economically powerful countries like in the Russian mind, this odd picture emerges, the United States have had a powerful im- in which the law appears to come primarily pact on the constitutional development of from the will of the government, and justice, the entire world. Our good friend, the late too, is what comes from the government. These Professor Albert Blaustein of the University of are deep-seated patterns that form in everyone’s Pennsylvania, said that the U.S. Constitution is consciousness. America’s most important export. This is true. I could continue on this topic, but this is a A great many countries have adopted the model good transition point to a discussion of the im- of the U.S. Constitution, many of them rather pact of globalization. Globalization is supposed uncritically. Unfortunately, our Constitution to level out the differences between modern did not follow the American formula closely legal systems. The most important and well- enough. And although some of the other post- known mechanism for doing this is through Soviet states have borrowed certain constitu- international treaties. The U.S. Constitution tional provisions of the Russian Constitution, established the classical formula for incorpo- our Constitution has not had such a big impact rating international treaties into the legal sys- on its neighboring countries.

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 71 The third main way in which globalization part of it. So now I am proud to announce that influences the constitutional process is through he is here to speak to us. the various intergovernmental or supranation- al associations. There are many of them now. William POMERANZ Unfortunately, the ones Russia has aligned Thank you very much, Oleg. Several of the itself with have not been very successful. For speakers have already addressed the importance example, the Commonwealth of Independent of Article 15(4) of the Russian Constitution. States is a very weak and amorphous entity. This provision states that generally recognized Also, the Russian Federation is not playing the principles and norms of international law and role in that organization that it should, for vari- international treaties of the Russian Federation ous historical, economic, and political reasons. shall constitute an integral part of its legal sys- We have not yet succeeded in creating a new tem. Since we are holding this conference in community of nations. Washington, D.C., I think I can begin by as- This is partially the fault of our lawyers. For suring you that there is really no equivalent example, the Yalta Agreement on the Creation provision in the U.S. Constitution. Indeed, of a Common Economic Space takes up only when Justice Anthony Kennedy mentioned three pages. Compare that to the agreement foreign law in one of his opinions, he endured creating the Common Market in Western significant criticism for even referring to non- Europe or the agreement between the United U.S. legislation. The Supreme Court remains States and Canada creating a common econom- sharply divided on this issue, with several jus- ic space, which takes up several hundred pages. tices insisting that outside of specific treaties, This is the correct approach to dealing with is- foreign law should play no role in U.S. consti- sues of integration and the impact of globaliza- tutional interpretation. tion on political reality. As Professor Butler has so eloquently dem- Thank you. onstrated, Russia has taken a very different ap- proach. It has opened itself up to international Oleg RUMYANTSEV law to an unprecedented degree. Yet, at the Now it is real pleasure to introduce a man who same time, significant tension exists between has taken on the challenge to be our partner Russia and international law. I intend to high- in this conference. It has been a challenge. I light this clash and further examine the impact can tell you that William Pomeranz was one of of international law on Russia by focusing on the U.S. scholars who took part in our interna- one specific issue: nadzor (supervisory review). tional research devoted to the 15th anniversary Now, I must admit, there is probably some of the Russian Constitution, which Alexander rule that the last speaker on the last panel can- Lebedev here described as a white paper. not talk about civil procedure. Nevertheless, I I am very proud to tell you that 15 years am going to try and skim the surface and talk after drafting the Constitution we were award- about supervisory review in the most general ed by President Medvedev a pochetnaia gra- terms, primarily to draw attention to the ten- mota [Certificate of Honor] of the President of sion over nadzor between Europe and Russia. Russian Federation. It is a new award for our Supervisory review generally serves as a sup- input in the drafting of the Russian Constitution. plementary appeal to civil and criminal judg- And when we were at the award ceremony in ments that have already technically entered into Kremlin, Mr. Sheinis came to the rostrum and legal force. In practical terms, this means that told Mr. Naryshkin, the Head of the Presidential Russian law allows for an extra round of ap- Administration: “This is our international re- peals that can go through multiple stages, and port on the problems of the implementation of drag out the proceedings considerably. As a the Russian Constitution. I hope that you and result, nadzor leads to uncertainty within the the administration will study this and will com- Russian legal system, most notably by raising ply.” So this was a real action by an independent questions about the finality of judgments (res ju- constitutionalist. And William Pomeranz was dicata) under Russian law.

72 / THE RUSSIAN CONSTITUTION AT FIFTEEN Supervisory review traces its origins back to to the actual parties to the proceedings. As a tsarist Russia, but it truly flourished after the result, nadzor ceased to be the exclusive reserve 1917 revolution. During the Soviet period, it of the procuracy and judiciary. In addition, the was the procuracy that retained broad discre- deadline for submitting civil supervisory review tion as to when to file supervisory review pe- requests has been limited to 6 months after a titions. According to the 1964 RSFSR Civil final decision. The Russian Civil Procedure Procedure Code, prosecutors (and certain Code further now requires the exhaustion of high-ranking judges) received broad authority the means of appeal prior to the submission of a to protest a final judgment that technically had supervisory request. already entered into legal force. These protests, All of these fundamental changes would in fact, could be filed years after the final judg- not have occurred without the persistent prod- ment had been rendered and without consult- ding of the European Court and the Council ing the actual parties to the dispute. of Ministers. It further must be noted that the Since the collapse of the Soviet Union, the Russian Constitutional Court has listened principles and norms of international law have to Europe and issued its own call to reform had a profound effect on the institution of su- the supervisory review process. The 2007 pervisory review. This influence has occurred amendments to the Russian Civil Procedure primarily through individual decisions issued Code are, to a large degree, a response to the by the European Court of Human Rights. The Constitutional Court’s insistence that nadzor European Court initially confronted the issue satisfy established international legal stan- of supervisory review when it addressed the na- dards. And, as Professor Butler mentioned, the dzor procedures in post-socialist and Russian Constitutional Court now regularly Ukraine. In those cases, the European Court refers to European Court cases in addressing found that that these supervisory review pro- nadzor and other important issues. cedures violated Article 6 of the Convention of Yet despite supporting these critical changes, Human Rights and the right to a fair trial. In the Constitutional Court remains unwilling to 2003, the European Court examined Russia’s take the final step and declare supervisory re- civil supervisory review process and also found view unconstitutional. This failure has result- these provisions in violation of Article 6. In ed in significant tension between Europe and rejecting nadzor, the European Court empha- Russia. Both the Russian Constitutional Court sized the importance of res judicata, stating that and the Russian government now insist that in no party is entitled to seek a review of a final light of the major changes to the nadzor process, and binding judgment merely for the purpose a decision should not be considered final as long of obtaining a re-hearing and a fresh determi- as the supervisory review proceedings remain nation of the case. However, while rejecting ongoing, since all internal appeals would not those cases where civil supervisory review was had been exhausted as required under Article just an appeal in disguise, the European Court 46(3) of the Russian Constitution. carved out a special exception for Russia, al- This assertion directly contradicts previ- lowing for supervisory review if it was made ous rulings by the European Court of Human necessary by circumstances of a substantial and Rights. Since 1999, the European Court has compelling character. ruled that supervision under the previous Other institutions, most notably the Council RSFSR Civil Procedure Code was not a local of Europe’s Committee of Ministers, also have remedy that requires exhaustion. This deter- called for fundamental changes to the nad- mination essentially means that Russian citi- zor process. In response, Russia introduced zens may file appeals to the European court substantial modifications to civil supervisory within six months of a cassation decision with- review in 2002 and 2007, while criminal su- out necessarily exhausting all appeals within pervisory review underwent a major overhaul the Russian legal system. As a result of this ab- in 2001. Most notably, Russia opened up the breviated appeals process, the European Court process of civil and criminal supervisory review has been inundated by appeals by Russian

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 73 ­citizens. For example, in 2007, Russia filed published the text of the Constitution with the more than one-quarter of all appeals to the new amendments. It was a national bestseller. European Court. Even in the early morning, it was nowhere to In conclusion, the issue of supervisory review be found for sale. I would like to present a copy highlights some of the points that Professor Butler of this official edition to the Kennan Institute. and other speakers previously made, namely that I would like to second what Professor international and European law currently exerts Lafitsky said regarding the creation of myths significant influence on Russian law. At the same about our constitutional history and practice. time, the Russian Constitution’s openness to in- For example, Professor Sheinis said that the ternational law has also resulted in significant Venice Commission of the Council of Europe tensions. The Russian press regularly accuses the approved the first and second chapters of the European Court of Human Rights of lacking ob- draft constitution of the Russian Federation. jectivity and directly interfering in the Russian But for some reason he did not mention that the judicial system. Meanwhile, EU officials cite the Venice Commission also approved the other multiple failures of the Russian legal system as the chapters of the draft and did not identify in the main reason for the overflow of Russian cases to final draft any significant or radical imbalance Strasbourg. At the root of this legal—and increas- in the distribution of powers, the federal struc- ingly political—dispute is the institution of super- ture, or anything else. Arguing in support of visory review. How the EU and Russia ultimately his conclusion, he said that every country is dif- address this crucial procedural issue will have pro- ferent, and that applies to all aspects, including found implications for the future influence of in- local government, the federal structure, and so ternational law on the Russia Federation. forth. Experts from other countries performed a comprehensive legal analysis of the draft con- Oleg RUMYANTSEV stitution, and the results show that the provi- Thank you, Will. Thank you very much. And sions of our Constitution are not copied from we should thank Will Pomeranz and the Kennan anyone else’s constitution. The framers of the Institute for being our hosts for this excellent Constitution took a very thoughtful approach conference. It is now quarter past midnight in to all the suggestions they received from for- Russia, but there is still one young man who eign consultants. Many of these suggestions is our discussant on this fourth panel, and we were made by American scholars, of course. would like to ask for five minutes for Stanislav In his speech, Professor Illarionov said that Stanskikh, a representative of a younger gener- they removed the Constitution Day from the list ation of Russian constitutionalists. He is deputy of government holidays in Russia. This is not editor-in-chief of the Journal of Constitutional quite right. Constitution Day is an official holi- Justice, which is edited and published in the day in Russia, but it is a work day now, while constitutional court. previously, it was a day off. I mention this because there are facts that should not be confused. Stanislav STANSKIkH Secondly, Professor Illarionov also said from Thank you, Oleg. It is very nice to be here. And this podium that everything is so bad in Russia it is nice that after 15 years, this conference has and freedom is so limited that the poor Russian renewed the contacts and scholarly exchanges constitutionalists had to come to America, land between American and Russian constitutional- of the free, to celebrate the 15th anniversary of ists. Today I want to respond to some of the their beloved Constitution. Supposedly they statements made by previous speakers. First, I were not allowed to do this in unfree Russia. would like to make one remark. In Russia it This is not true either. As Oleg will confirm, is very rare for a newspaper to sell out. You he has organized or taken part in many con- can always find any newspaper you want. But ferences and roundtables. We have worked to- in January of this year, one Russian newspaper gether to organize events celebrating the 15th could not be found for sale anywhere. It was anniversary of the Constitution, both in the the edition in which Rossiyskaia gazeta officially State Duma and at other institutions. Many

74 / THE RUSSIAN CONSTITUTION AT FIFTEEN of these events were open to the public, and from the United States is the idea of a museum everyone was welcome. No one attempted to of the constitution. This would make a great restrict anything, except of course the official contribution to the effort to raise the level of conference that was held in the Kremlin. The legal culture among the public, because stu- atmosphere there was rather…officious. dents could visit the museum, as they do here I would like to say a few words about this in Washington. This would promote aware- panel, the fourth panel during which we have ness about the Constitution. Of course, we discussed the processes of globalization. There should also spend more time teaching about is a trend in the world now toward interpene- the Constitution in the schools. For our part, tration of legal systems and legal cultures. These we could offer the experience of our Central systems are becoming more similar and incor- Election Commission, because until recently porating international standards and norms to the United States did not have a federal elec- a greater extent. But one problem is that it is tion commission. So come and visit us, we will sometimes very difficult to determine which teach you how to count votes. international standards a nation’s legal system Since I represent the scholarly journal must adopt. One good way in which interna- of the Constitutional Court of the Russian tional norms are incorporated into the Russian Federation—the Journal of Constitutional legal system is through the constitutional en- Justice—I should probably say a few words about forcement bodies, primarily the Constitutional the assessments of the work of the Constitutional Court, whose actions in this sense can be di- Court that have been made by Alexei Trochev vided into three stages. and Professor Illarionov. Mikhail Gorbachev The first stage was the period until 1996, be- was right when he said that we cannot do in fore Russia joined the Council of Europe, when 200 days what took centuries elsewhere. The for all practical purposes international norms, Russian Constitutional Court is only seven- standards, and principles were not applied. teen years old, and it has done a great deal in Certainly the courts of general jurisdiction and that time. The fact that the official text of the the Constitutional Court did not apply them. Constitution was sold out before noon and has After Russia joined the Council of Europe and become a collector’s item indicates that the ratified the European Convention on Human public in all parts of the Russian Federation is Rights, the Constitutional Court began to interested in the Constitution. apply the provisions of that Convention and to The same can be said of the Constitutional cite the legal opinions of the European Court Court. Some of its decisions, particularly those and other mandatory standards. This stage last- that involve the functioning of government ed until about the year 2000. agencies and local governments, are frequently The third stage began around 2000 and called into question. But the majority of the de- continues today. This is a progressive stage, in cisions is effective and truly helps the average which the Constitutional Court is applying not citizen. We should not forget this. only the mandatory standards but also the rec- There is an impression that other high courts ommended norms of the Council of Europe, in Russia, like the Supreme Court and the the Venice Commission, the Congress of Local Supreme Arbitrazh Court, are for various rea- and Regional Authorities of the Council of sons not fully reconciled to the existence of the Europe, and other organizations. This practice Constitutional Court. This is particularly true has continued to expand. It has moved deep of the Supreme Arbitrazh Court and the entire into the country, and the recommended stan- system of commercial justice, which in several dards are now being applied, for example, by cases has simply ignored the Constitutional the Constitutional Court of Tatarstan. This is Court. The Constitutional Court enters an a very progressive trend, and this experience is order, and they ignore it. The Constitutional very useful for other countries. Court comes to them again and issues a ruling What do Russia and America have to offer clarifying the order, and they ignore that too. each other now? One thing we could borrow Then the Constitutional Court issues a ruling

ASSESSMENTS AND CURRENT CHALLENGES TO RUSSIA’S LEGAL DEVELOPMENT / 75 clarifying the ruling clarifying the order. All “A generation has grown up that has not been these rulings are issued, but the courts ignore beaten down.” They are different. This is true. them. This is what Professor Lafitsky was talk- But let us not exaggerate the quality of this ing about when he said that the judicial system young generation. I also work with students is highly corporate. Thank you. in prestigious universities, and I should say that, unfortunately, my students at Leningrad Viktor SHEINIS University in the 1970s were much more unin- I have decided to hold you up for two or three hibited; at least in private conversations, when more minutes, because the issue that Viktor they said what they really thought. They were Kuvaldin touched upon is very important. I much more politicized. I should not generalize, respect his point of view, which he expressed all students are different, but the current gener- clearly, without mentioning me by name but ation of students is focused mainly on personal referencing what I said earlier, that “it is not success. This is a sign of the times, and there are true that Russia has regressed to the time before good things about it. But in general these are perestroika or to the early days of perestroika.” I not very publicly spirited people. said it had regressed in the political sense. This Finally, we should not exaggerate the idea is an important qualification. Unfortunately, that this generation is not beaten down. For Russian political institutions have ceased to be example, just recently the Higher School of independent. This includes the vast majority of Economics received a letter from a police of- political parties, including opposition parties. ficial saying that certain students had been Unfortunately, this is the way it is. observed participating in an unsanctioned Some say that there are newspapers like demonstration. From the point of view of the Novaia gazeta or Nezavisimaia gazeta or several Constitution, this is an absolutely nonsensi- others, which can publish things that no news- cal term: the Constitution grants the right of paper could have published in Soviet times. assembly and demonstration with no require- This is true. But we know that they exist large- ment of official sanction. But this police officer ly because the authorities have decided that recommended that the administration of the these independent newspapers are needed for Higher School of Economics review the ac- one reason or another. At any time, if the au- tions of these students. As far as I know, he re- thorities so desired, these newspapers could be ceived a worthy reply from the Higher School shut down just like the excellent NTV televi- of Economics. They told him, in the Russian sion network once was. I cannot imagine, for , something along the lines of “Go instance, or the International to hell.” This happened at the Higher School of Herald Tribune being closed down because the Economics, an outstanding institution of liberal U.S. president suddenly felt that they were un- education. I do not know which other univer- suitable. Except for certain private matters, our sities got similar letters, because students from political system largely mimics the Soviet sys- the School of Economics were not the only tem and is moving in that direction. We see this ones who participated in the demonstration. in the political structure as well. For example, But it is quite possible that the administrators of the presidency is analogous to the office of gen- the other universities, as a minimum, decided eral secretary, the Security Council is similar to to not make public this outrageous letter from the Politburo, and the parliament is no more in- a police official. dependent than the Supreme Soviet. There are Everything that Viktor Kuvaldin said about many more examples. the new generation being different from us is Viktor Kuvaldin said one other very inter- quite right, but as long as this political system esting thing I would like to note. My friends is in place, it all hinges on tenterhooks, and and like-minded people often say this to me: “A we should not be overly optimistic. I would whole new generation has grown up!” In the be very happy, though, if future events proved words of our great historian Nathan Eidelman: him right and me wrong. Thank you.

76 / THE RUSSIAN CONSTITUTION AT FIFTEEN The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia’s Legal Development Conference Proceedings

Edited by F. Joseph Dresen and William E. Pomeranz

Woodrow Wilson International Center for Scholars O CCASIONAL PAPER # 304 KENNAN One Woodrow Wilson Plaza 1300 Pennsylvania Avenue, NW INSTITUTE Washington, DC 20004-3027 Tel. (202) 691-4100 Fax (202) 691-4247 www.wilsoncenter.org/kennan