Bill of Wrongs: Constitution in Mess in Russia

MOSCOW —  Whichever side wins the two-week standoff at the Parliament building here, this country’s small legal community is sure of one thing: Russia’s respect for the law will not quickly recover.

Even as President Boris N. Yeltsin and parliamentary leaders have striven over recent days to line up support for their positions, concern has been growing among jurists, attorneys and legal scholars--all members of a fledgling profession--that Yeltsin’s Sept. 21 move to dissolve the Parliament may have been more of a setback for the rule of law in Russia than a victory for reform.

“We have a population with no idea of what legal culture is all about,” Andrei Makarov, a prominent defense lawyer and prosecutor, said recently. “What is scarier, our lawyers have a very poor idea of legal culture.”

Yeltsin never pretended that his actions complied with the constitution. But he argued that legislators regularly violate elementary rules of order and are intent on fostering chaos in the country. He insisted that the Parliament was so hostile to his reform program and so intent on depriving him of executive authority that he had to set himself temporarily above the law.

But the notion that Yeltsin treated the constitution too cavalierly is held even among legal experts who disdain the Parliament as much as he does.

“What the president said about (members of Parliament) was fair,” said Vladimir I. Lafitsky, a legal scholar at Moscow’s Legislative Institute. “But that is not a justification for his actions. In our state, everybody is infringing on the constitution--everybody.”

One reason for the heightened concern about the long-term effects of Yeltsin’s decree is the already rickety state of Russia’s constitutional and legal foundation.

This is an enduring legacy of the Soviet era, when no division of powers among government branches was necessary because all power belonged to the Communist Party. The judiciary did not function as a mediator of conflicts between the executive and legislative branches. In practice, it was the antithesis of a defender of individual rights.

“Their courts were all stooges, part of an administrative structure,” said Albert Blaustein, a constitutional law professor at Rutgers University in New Jersey and adviser this year to the Russian Parliament’s constitutional drafting committee. “Declaring things unconstitutional was not part of their custom.”

The absence of written legal precedent has encouraged a practice of drafting new laws or making new rules to cover every new development. “Legitimacy in this country is measured by time, because we don’t have traditions and we don’t have laws,” said Grigory Yavlinsky, a prominent economist and possible candidate for president next year. “If you were elected on Monday and I on Tuesday, that means I am more legitimate than you are because I was elected more recently.”

Yeltsin himself focused on this phenomenon in his speech dissolving the Parliament, describing the legislators’ approach to cooperative lawmaking as “a primitive formula: We pass the law we like--what we like to write, we do.” He continued, “The further it goes, the greater is the mess.”

The weakest link in the legal structure is the constitution itself, enacted in its most recent incarnation in 1978, under Soviet power.

Yeltsin’s recent attempts to replace it with his own draft strengthening presidential power foundered on the objections of regional officials, who demanded greater status for their governmental units in any new national legislature. (Along with a new constitution, Yeltsin intends to establish two new houses of Parliament.)

The constitution has remained at the center of the political tug of war since the August, 1991, hard-line coup attempt initiated the breakup of the Soviet Union.

The document itself is something of a moving target; indeed, in U.S. terms, “constitution” is a misnomer, because nothing that has been amended as often as the Russian constitution resembles the basic law of the United States.

“I haven’t counted how many amendments there are because there are too many to count,” said Boris M. Lazarev, a professor at Moscow’s Institute of State and Law. Most reckonings place the figure at more than 200. But the total is difficult to determine in part because amendments to the Russian constitution are made directly in the work’s text, not tacked on.

For many, the key question is whether the concept of constitutional preeminence is more important than the existing law’s obvious shortcomings. “It’s full of gaps, unclear provisions, conflicts between the republics and the member states,” Lafitsky acknowledged. “But it’s the constitution, and no one has the right to abandon it arbitrarily.”

Others argue that the constitution’s contradictions and infelicities are so serious that Yeltsin genuinely had no alternative but to override it. Among other provisions, it allows Parliament to assume the powers and duties of the president but does not specify under what conditions this can happen.

“To the extent that I’m a realist, I know that the point isn’t the letter but the essence of the constitution,” said Aleksei Mitzkevitch, a professor of law at Moscow’s Legislative Institute. “The president made his coup to defend reform and provide for the further development of the country. Of course, the constitution was violated, and that’s a very negative factor. But I don’t see any other way.”

Reformers and traditionalists alike agree that among the other weaknesses of the Russian state’s legal structure is the youth of its institutions. The Constitutional Court, which exercises the right of judicial review of presidential and parliamentary actions, was founded only in January, 1992.

That was not enough time for the Russian court to acquire the authority necessary for its rulings to be obeyed. (As Court Chairman Valery D. Zorkin said ruefully last week when Yeltsin simply ignored its ruling that his order was unconstitutional, “The Constitutional Court has no army.”)

Moreover, the court almost instantly became embroiled in a partisan political dispute when Zorkin tried to mediate.

Most also agree that one necessary prerequisite for the establishment of a serviceable legal system is a stable society--something that many doubt will be achieved for years in Russia.

“Common sense is not a vital force in our society,” Lafitsky said. “We’re living in a time of extremes. The (Parliament) is trying to kill the president; the president is trying to kill the (Parliament). The Founding Fathers (in America) weren’t trying to kill anybody but just trying to create a balanced state structure.”

Still, some scholars argue that in a time of such radical political and economic change, a period of lawlessness is an inevitable prelude.

“The existing constitution did not provide the normal resources to overcome the confrontation between the branches of government,” Mitzkevitch said. “You have to understand what a revolution our country is undergoing. Turning such a great ship around 180 degrees will take many, many years.”