Russia's Draft Constitutions: How Democratic Are They?

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Russia's Draft Constitutions: How Democratic Are They?

June 30, 1993 26 min read Download Report
Richard Fisher
Distinguished Fellow in China Policy
(Archived document, may contain errors)

949 I r T"'y r LT June 30,1993 RUSSIA'S DRAFT CONSmONSr HOW DEMOCRATIC ARE THEY INTRODUCTION Russia's road to democracy has not been an easy one. The stunning success of President Boris Yeltsin and his democratic allies in sweeping away the Soviet tot alitarian state has given wa to political warfare between the president and the hard-line Congress of People's Deputies. This struggle has limited the efforts to create democracy and a market economy in Russia. The gridlock and political paralysis generat ed by Russia's constitutional crisis have distracted reformers and slowed the process of reform.

The battle between Yeltsin and the Congress is now being waged over competing visions for Russia's new constitution. The hard-liners in the Congress support th e constitution inher ited from the Soviet era, a cumbersome and confusing document which was never intended to be the basis for a democratic state. Meanwhile, Yeltsin wants a new constitution that will abol ish the remaining Soviet institutions and establ ish a constitutional basis for a stable democ racy.

Yeltsin published his draft of a new Russian constitution on April 30, 1993: after his unex pectedly decisive victory in the national referendum the week bef~re This referendum showed that the Russian peo ple strongly support Yeltsin and his policy of economic and dem ocratic reforms. Aware that his enemies in the Congress would never accept a constitution that would remove them from power, Yeltsin called a constitutional assembly on June 5 to de bate and f inalize his draft and to prepare for its ratification even over the objections of the Congress 7 1 2 Izvestia, April 30, 1993 3 The Congress of People's Deputies is a 1,065-member Russian superparliament that elects from its members the standing legislatu r e, called the Supreme Soviet This was a logical direction for Yeltsin to take and had been suggested by several commentators. See Sergei Alexeev DramaVlasti V Rossii Izvestia, April 29, 1993, p. 6; Ariel Cohen AfterYe1tsin'sVictory:What Next Heritage Foun d ation Executive Memorandum No. 354, April 29,1993. t Competing Constitutions. The Yeltsin draft is not the on1 constitutional proposal. An other important document is the so-called Rumiantsev draft which has been under consider ation by the Constitutional Commission of the Supreme Soviet of Russia for over three years.

The draft is named after its chief author, Oleg Rumiantsev, the chairman of the Commission.

This version originally began with Yeltsins b1essing;but it has long since come under the control of the hard-line leaders of the Congress. Although they would prefer to retain the cur 2 rent Soviet-era I* constitution hard-liners in the Congressand T;t7 t he regularly meeting Supreme Soviet (Or Parliament) have rallied around the Rurmantsev draft to stop Yeltsins bid for a con stitutional assembly to draft a new Russian constitution. The constitutional battle is now fully engaged, with the Supreme Soviet C h airman Ruslan Khasbulatov declaring that Yeltsins draft is illegitimate. Meanwhile, Yeltsin is threatening to ignore the Congress altogether and to present his constitution to a popular referendum, to a vote of a democratically elected Con stitutional Ass embly, or to a vote of a newly elected parliament.

This power struggle between the President and the Congress has distracted attention from the contents of the competing constitutional drafts. This is unfortunate. Whatever final shape it will take, Russias new constitution will create a lasting legal framework for her future eco nomic and political systems. A poorly conceived constitution could make it impossible for de mocracy and a market econony to take root in Russia.

To assess the various constitution al drafts, they should be examined according to a set of long-standing democratic and market principles. These are J Protection of individual rights J Protection of property rights J Separation of powers J Federalism and limits on the central government J Limitation of entitlements on so-called social rights to work, leisure, free education free medical care, among other things.

A pro-democratic and market reform constitution must respect these principles. Without them, a Russian constitution will do littl e to advance democracy and economic growth in Rus sia RUSSIAS CONSTITUTIONAL DRAFTS: THE OPTIONS The current Russian constitution was adopted in 1978, when Leonid Brezhnev ruled the So viet Union, and the Russian Soviet Federated Socialist Republic was an integral part of it.

This constitution was drafted to ensure communist rule and was never intended to be the legal basis for an independent or democratic country. Amended over 250 times, this constitution is little more than a patchwork of democratic refo rms stretched over a totalitarian frame 4 Constitutional Commission Draft Constitution, FBIS Central Eurasia Daily Report Supplement, FBIS-SOV-93-09 1 -S May 13,1993 2 In addition to the current Soviet-era constitution, there are three competing drafts fo r a new constitution. They are 1) The Yeltsin draft. This is the closest to a Western-style constitution, provid ing more protection to individual rights than any other draft 2) f- The Rumiantsev dr+ft. This combines social gnd.dqmocratic features, and is favored cy many members ofthe anti-Yeltsin coalition 3) The Communist draft. Framed by representatives of the Russian Communist Party, this draft would turn back time and re-create a communist regime in Russia.

To prepare his constitutional draft, Yeltsin assembled a distinguished group of experts under the supervision of Vice Premier Sergei Shakhrai, a legal scholar and politician experi enced in nationalities issue Among the legal scholars contributing to the Yeltsin draft were Sergei Sergeeyevich Alexee v , former chairman of the now defunct Committee for Constitu tional Control of the Soviet Congress of Peoples Deputies, and August Alexeevich Mishin an expert in American constitutional law. On May 21, 1993, Yeltsin issued a decree calling for a constituti o nal assembly to meet on June 5 to write a final version of the constitution based on the presidents draft? This currently is under discussion by the Constitutional As sembly, which will also propose many amendments to it. The draft is to be completed by J une 26, 1993.

The Rumiantsev draft has a different history. The Congress of Peoples Deputies, which was elected under the supervision of the Communist Party in 1990, created its Constitutional Commission in June that same year under the chairmanship of Yel tsin, with Rush Khasbulatov as deputy chairman and Oleg Rumiantsev as executive secretary. The members of the Commission include many Soviet stalwarts, such as former Communist Party apparatchiks, regional KGB and police chiefs, and military officers9 ber of disturbing provisions, such as the abolition of autonomy for ethnic minorities. Not sur prisingly, it aims to preserve the interests of the old Soviet elite (or nomenklatura which com rises the majority of the Congress and its smaller standing legislat u re, the Supreme So viet! The Rumiantsev draft, for example, seeks to protect collective property, preserve the 6 Although initially inspired by democratic values, the Rumiantsev draft now includes a num Alexander N. Dachieyev and Vladimir B. Razmustov, Ru ssiun Leaders Profiles (Moscow: Russian Public Political Center, 1993 pp. 24-27.

Alexeev and St. Petersburgs Mayor Anatoly Sobchak authored their own constitutional project for the Democratic Movement for Reforms; Mishin did so under the auspices of the Re form Foundation. Alexeev is currently proposed to head-the Constitutional Assembly.

Yeltsin issues decree calling constitutional meeting, RFE-RL Daily Report, No. 97, May 24, 1993, p. 1.

Oleg Germanovich Rumiantsev, at the time of his election to the Sup reme Soviet, was researcher at the Institute of Eastern Europe and International Studies of the U.S.S.R. Academy of Science. Source: Proyekt Konstitutsii Rossiyskoy Federutsii (Sbonzik Muteriulov Moscow: Supreme Soviet, 1992 He was also among the leaders and founders of the Russian Social Democratic Party.

This commission includes Sergei Baburin and Vladimir Isakov, the most outspoken nationalist hard-liners in the Parliament 3 vast state-run systems of distribution of goods and services, and to curb individual rights.

Even so, despite three years-of work, the Commission has yet to approve a -finalized version.

A third draft constitution circulating in Moscow was prepared by former Communist Party apparatchiks, KGB generals, and representatives of the Sov iet military. Their draft pays lip service to human rights, reintroduces the concept of peoples property managed by the state, and declares Russia a Soviet socialist republic. r I CI r I c Options for Adopting the Constitution The Russian president has fo ur options for gaining approval of a Russian constitution.

Option #1: Adoptio n by the Congress of Peoples Deputies. According to the 1978 constitution, currently still in force, only the Congress of Peoples Deputies can amend the existing constitution. Doing this will require a two thirds vote in the Congress. Yeltsin raised this p ossibili in his speech at the opening of the Constitutional Assembly on June 5.The Speaker of the Parliament and Yeltsins hard-line opponent, Ruslan Khasbulatov, seems determined to sabotage any effort by Yeltsin to use this route. However, the leadership of the Supreme Soviet is currently split, and many deputies, such as those led by Deputy Speaker Nikolay Ryabov, have indicated they may be open to compromise Option #2: Adoption by popular referendum. According to the Russian Con stitutional Court, a maj o rity of all eligible voters would be needed to make the results of such a referendum legally binding. Khasbulatov has de manded that, if this route is used, not only Yeltsins proposed draft, but also that of the Congress, be included in a referendum. Khas b ulatov hopes that by providing a number of proposals, no single draft will get a majority of registered votes, leaving the current constitution in force Option #3: Adoption by a new parliament after its election. Yeltsin has pro posed elections for a new p arliament to be held in October. Pro-reform elements in the Congress want to dissolve the current parliament. Their plan is to persuade at least 350 deputies-or more than one-third of the total-to resign and thereby permanently deny the Congress the two-t h irds vote needed for a quorum. Once this were done, Yelstin could call for new elec tions without obstruction. This new parliament, he hopes, then would approve his Constitution 10 S.S. Alexeyev, Demokraticheskie Reformy i Konstitutsia (Moscow: Pozitsia, 1 992 p. 24, quoting Pravda, April 14 1992 11 0 demokraticheskoy rossiyskoy gosudarstvennosti i proyekte novoy konstitutsii. Doklad Borisa Yeltsina na konstitutsionnom soveshchanii (On democratic Russian statehood and project of the new constitution. Yeltsi n s report at the Constitutional Assembly), TASS, June 5, 1993 4 Option #4: Adoption by the Constitutional Assembly. The current Constitu tional Assembly may declare itself a legitimate body to adopt the new constitution. In fact, Yeltsin supporters have pr o posed holding new elec tions for a new Constituent Assembly that would then supersede the authority of the intransigent Congress of Peoples Deputies ASSESSINGZH.E-CONST~ITUTIONAL -DRAFTS FIVE -PRINCIPLES These various draft proposals represent competing v isions for Russias future. In order to know whether they advance democracy and the market economy in Russia, they need to be as sessed according to a set of democratic and free market principles. They are Principle 1 Protection of individual rights.

The tr agedy of life under communism can be summed up in five words: the trampling of individual rights. After decades of tyranny, the establishment of a post-communist society re quires a political system that promotes and protects individual liberty. There are a number of prerequisites for such protection to be effective, but among the most important is the safe guarding of individual civil and economic rights.

Both the Yeltsin and Rumiantsev drafts declare that numerous individual rights will be con stitutiona lly protected. Among them: equality before the law, equality for the non-Russian eth nic minorities, and freedom of speech, press, religion, and movement. Some of the enumer ated rights are in response to Russias history of totalitarianism. Among these ar e a prohibi tion a ainst torture and a ban on involuntary medical, scientific or other experiments on hu mans.

Despite their exhaustive listing of individual rights, however, the Yeltsin and Rumiantsev drafts both undermine the protection they promise. The y do this by granting the government the ability to limit these rights. For example, the Yeltsin draft declares that the conditions and order of the implementation of rights and liberties can be set only by law.14 This seem ingly innocuous language could p rove to be significant limitation on individual freedom. For mer Soviet judges still on the bench could interpret this clause to mean that the exercise of any rights not prescribed by law is prohibited. The same article also allows for the limitation of r i ghts in cases of the defense of rights and legally protected interests of other persons, pro tection of state order, ensuring security and protection of public order, protection of health and morality. Such broad language gives significant power to the le g islature to limit or ne gate altogether some or all of the constitutionally guaranteed freedoms. By passing a regular law-not even a constitutional amendment-the legislature may abolish a constitutionally guaranteed freedom, such as the right of free asse m bly or freedom of speech 12 f3 12 Bernard H. Siegan, Draping a Constitution for a Nation or Republic Emerging into Freedom (Fairfax, VA: The Locke Institute, 1992 p. 7 13 Yeltsin Draft, Articles 8-20; Rumiantsev Draft, Articles 13-15,20-34 14 Article24 5 The Rumiantsev draft is less specifically protective of individual rights than the Yeltsin draft. It allows numerous liberties to be restricted by federal law,915 including freedom of ex pression and information.

One example is the continuation of restrict ions on the freedom of movement, including re tention of the propisku, which is a residence permit issued by the police. l7 The parliamentari ans want the right of Russian citizens to choose their residence to be phased in over a period The current Rumian t sev draft states that individual rights and liberties can be limited for the purpose of protection of the constitutional order of the Russian Federation, public moral ity, rights .and liberties of other persons.* American Bar Association experts have alre ady criticized this as an open door for limitations on individual rights and liberties. l9 The draft would allow the parliament to abolish a protected right with a simple parliamentary majority.

Individual rights are also hemmed in by broad language in oth er articles. For exam le, the Rumiantsev draft proclaims that the State is the official representative of society. The legal implications of this statement are far from clear, but the potential for abuse by the gov ernment acting in the name of society is undeniable. For example, courts could interpret it as justifying actions by a bureaucrat, a police officer, or a KGB operative that violate the rights of an individual.

The communist draft pays lip service to individual and human rights, but what it gives with one hand, it takes away with the other. Rights are granted by the constitution, and thus are not treated as inalienable 1iberties:l All constitutional rights, therefore, can be limited by the parliament or by local governments in the interests of st ate security, public morality, and so cia1 good 16 of&n.yeNs I I I 22 Principle #2: Protection of property rights.

As the framers of the American Constitution understood, political freedom cannot be guar anteed without economic freedom. The secure right of property is not only the foundation of a market economy, but of individual liberty as well 15 16 17 18 19 20 21 22 See, for example, Articles 21(3 23(1 24(3 25(3), etc.

Article 25, par. 1 of the Rumiantsev draft states: Everybody has a right to freedom o f thought, expression and uninhibited expression of opinions and beliefs. Par. 2: Everybody has the right to uninhibited search, receiving producing and spreading of information by any lawful means. Par. 3: Limitations of these rights can be set by federa l law in order to protect state and bureaucratic service (sluzhebnye) secrets and public morals. Taking into account the Soviet tradition of wide reading of authorities rights, this legislative latitude seems excessive.

Par.-2: Everybody can leave the RF freely. kF citizens can return to the RF. Par. 3: Restrictions of the rights stipulated by this chapter can be set by the federal law.

Article 13.

Analysis of the Draft Constitution of the Russian Federation (Washington, D.C The American Bar Association Central and East European Law Initiative (CEELI), 1993 p. 6.

Article 1, par. 4.

Article 24 Article 26 Article 24, par. 1: Everybody has a right to the freedom of movement and choice of residence in the Russian Federation 6 Unfortunately, all three drafts fail to provide sufficient protection to private property. Not only is an open-e n ded role for the state in the economy preserved, but the same-type of broad and vague language which poses a threat to individual rights is applied to property and eco nomic rights. For example, Article 27 of the Yeltsin constitution severely limits econo m ic freedom by declaring a vague ban on monopolitization and malignant competition cle. 2 of~theXelt.sin.~draft.proclaim-the -inviolability- of. private. property which is called a natural right of man. Article 22 calls for economic freedom; Article 23 pro h ibits forced labor while protecting the freedom of labor. Article 34 of Rumiantsevs draft calls for eco nomic liberty realized in the right of ownership and the right to free enterprise. Article 35 of the Rumiantsev draft proclaims the right to inheritanc e . Article 43(3) of the same draft grants a right to compensation in case of unlawful damage to ones property clear from Article 62 whether the federal government will only regulate or directly own and manage the nuclear, space, transportation, and telecom m unications industries. Article 62 al lows the federal government to establish price policy foundations. It is unclear what this means, but it could imply the regulation of prices. It also is unclear how the Yeltsin draft af fects private and foreign busin e sses. Article 63 provides for the right to introduce tempo rary limits on the circulation of goods, services, and financial means if these are needed to provide for security, protection of life and health, protection of nature and cultural values be exerc ised freely by the owners. Such vague language will make investors wary, and thus hinder economic development and discourage investment.

Even more disturbing are some of the provisions of the Federal Treaty, an integral part of the Yeltsin constitution tha t governs relations with the republics. The treaty states that land its depths, flora and fauna, are the patrimony of the peoples of each republic. Questions of ownership, usage, and administration of these resources are regulated by the fundamental laws o f the federation and laws of the republic. The status of federal natural resources is de fined by mutual agreement between federal organs of the Russian Federation and organs of state power of the rep~blics Such vague language is often intentionally intro duced to allow the local authorities maxi mum control over economic activity by domestic and foreign investors. Such control can eas ily be translated into opportunities for graft and unlawful enrichment by the local politicians.

Moreover, since property rights over natural resources are poorly defined, Russian and for eign investors will gain little confidence from the Yeltsin draft.

While Yeltsins draft has certain limitations, the Rumiantsev draft is far worse. It speaks of Russia being a social stateF4 The Rumiantsev draft also proclaims that the basis of the econ omy of the Russian Federation is a social market, which places private, communal, and state ownership on an equal footing. By so doing, it downgrades the primacy of private property needed fo r a market economy. According to this draft, the state regulates economic life in the Both Yeltsin and Rumiantsev drafts declare the right of an individual to own property. Arti There are numerous examples of restrictions on property rights in the Yeltsin d raft. It is not In Article 27, the Yeltsin draft promises that the ownership and use of natural resources can 23 Federal Treaty, Article 111, par 3. Where are these natural resources defined? Such limitations will be protested by mineral-rich republics. 2 4 Article 1, par. 1 7 interest of the individual and ship between the individual and the state, between workers and employers, and between pro ducers and consumers.

Under the Rumiantsev approach, property rights cannot contradict the social g00d;2 forced e xpropriation is allowed if there is a proven social necessity.28 Only what the au thors call fair competition is all0wed.2~ This vague term would invite the state to interfere while economic relations consist of a social partner 26 in esonomic..activity B o th the Rumiantsev and communist drafts claim to accept the principle of economic plural ism? Economic pluralism and equality of all forms of property are operational code words to preserve state ownership and limit the development of private property. By a llowing the property rights to go unchanged, the drafts preserve the domains of the former communist upparutchicks and their vast sources of income. While the Rumiantsev draft allows for private property, albeit with significant limitations, the communist draft bans it and maintains that peoples property managed by the state will be the foundation of the economy, directed by both central planning, as well as a regulated market.

The communist draft declares that Russia will be a soviet socialist state. The land will be distributed between the collective farms owned in common by the members (kolkhozes) and state-owned farms (sovkhozes Garden lots will be allowed and distributed to citizens by the state in the sizes stipulated by law. The draft bans productio n based on exploitation of man by man,9y32 meaning private property and ownership. It promises pro ressive taxa tion and other means of ensuring a progressively rising standard of living w Principle #3: Separation of powers.

Given Russias authoritarian her itage and lack of established democratic traditions, the con centration of power in the hands of a single individual or group of individuals poses a serious threat to liberty. A series of checks and balances on the major institutions-the presidency the pa rliament, and the judiciary-is an essential requirement to prevent the rise of autocracy even in the name of democracy.

According to the Yeltsin draft, among the presidents powers is the ability to dissolve the legislature if it rejects his nominee for pri me minister, or if a political crisis cannot be over come by other procedures set out in the constitution. Under the Yeltsin draft, the legislative 25 Article 9, par 2. One wonders who is in charge of such regulations-the bureaucrats? The lawmakers? Will t he constitutional court be called upon to decide 26 Article 9, par 3. It is unclear how the supreme court will test laws and government activities in light of this guidance by the lawmakers. 27 Article 9, par. 1 28 Article 57, par 3. This will clearly dis c ourage foreign investors because the article does not provide the standard expropriation protection clause. Who will decide that the social necessity is proven? What if the reason for expropriation was not specified by law? If this is a protected constitu t ional right, why limit it by a regular state law 29 Article 9, par 1. While anti-trust regulation can be legislated, it should not be done in a constitution 30 Rumiantsev draft, Article 5; the communist draft, Article 12 proclaims diversity of forms of pr o perty but immediately cancels it by Article 13 31 Article 14 32 Article 12 33 Article 18 8 powers of the Federal Assembly (the Parliament) are limited. For example, only the president and the executive branch of the government, and not members of the lowe r house of parlia ment the State Duma), are entitled to propose legislation that involves taxation or expendi ture. 3a owever, the upper house will have wider powers than the lower one. For example, it will confirm such selected presidential appointees as the prime minister, supreme court jus tices, the chairman of the Central Bank, and the prosecutor general. The lower house will initi- ate and -9 pass laws 3- that must also be adopted by the upper house and signed by the president.

Under the Yeltsin draft the president would appoint ministers, mostly without parliamentary approval,3 and could dismiss them at will. If the Council of the Federation (the proposed upper house of parliament) casts a vote of no confidence in any cabinet minister, the president a nd the prime minister can accept or reject its decision. If the vote is against the entire cabi net, the parliament must then choose to accept whatever new government is proposed or be disbanded and face new elections.36 Accordin to this model, the presid e nt will be able to call extraordinary elections, announce re ferenda?and call for no-confidence votes in the government. The chief executive will also enjoy a line-item veto. In addition, he will have the authority to introduce nation-wide states of emerg ency, although these must be approved by the legislature. The president can nomi nate high military commanders and personal representatives in the provinces.

According to the Yeltsin draft, the president is the guarantor of the con~titution This arti cle w ould in effect give the president a quasi-judiciary function, thus violating the principle of separation of powers. Additional and unspecified judicial functions are bestowed in Article 80, which states that the president arbitrates between ministries and other government offices of the Russian Federation. This same article specifies that the president will have the authority to suspend unconstitutional laws or regulations passed by the federal government or the repub lic and local governments. He can do s o as well if human rights and liberties are violated by those governments.

By contrast, the Rumiantsev draft gives substantially more powers to the parliament and limits those of the president. The parliament has the right to propose and adopt constitution al changes by a two-thirds majority, pass laws, direct domestic and foreign policy, set taxes, and supervise their collection. The parliament calls elections of the president, approves nomina tions of the prime minister, his deputy, and the ministers of e c onomy, finance, internal affairs foreign relations, defense, and security. It nominates judges of the supreme and constitutional courts, the chairman of the Central Bank, and the prosecutor general. The parliament also has the right not only to dismiss th e prime minister and members of the cabinet but to impeach all high officials of the land, to declare war, peace, and amnesty for crimes.

The Rumiantsev draft provides a presidential veto that can be overridden by a two-thirds majority of each house or a t hree-quarters vote in the State Duma. It also would allow for lim 39 34 Article 101 35 Article 107 36 Articles 106and 112 37 Article74 38 Article70 39 Article 86(1 Article 95(2 9 ited referenda to be called by one-third of the parliaments members, b the p resident (sup ported by one-third of deputies), or by petition of one million people.

The communist draft, while paying lip service to the separation of powers, subjugates the executive and the judiciary to the Supreme Soviet. It creates an all-powerful Pr esidium of the Supreme Soviet, headed by a chairman who becomes a virtual dictator4l No checks and bal ances are envisioned by the communist drafters. A fourth branch of government, a spurious supemision- by.=:workers:-collectives~-of710cal .governments-a nd.the media, is also introduced.

The Judiciary. A major feature of the Yeltsin draft is the introduction of four supreme courts instead of one. In addition to a regular Constitutional Court (deciding constitutional questions a Supreme Court (for civil cases and a Supreme Arbitral Court ( f or business con flicts it also establishes a Supreme Judicial Assembly. The Supreme Judicial Assembly can be appealed to by the president, the parliament, and the other supreme courts, but not by citi zens. The Supreme Judicial Assembly will thus become a quasi-legislative supercourt that will interpret the constitution and decide the constitutionality of laws and court decisions. The Supreme Judicial Assembl will consist of chairmen of the three courts and their deputies and three federal justices.

A similar supercourt (constitutional court) is created in the Rumiantsev draft!3 The authors believe that since Russia does not have a common law system, it needs a tribunal that will de fine and interpret the law of the land and the constitution.

Russia would be better off with only one Supreme Court that would have the power and ex pertise to decide constitutional, criminal, civil, and administrative matters. Such an arrange ment will provide both finality of the law and easier management of the judicial proc ess 4J 41 Principle #4: Federalism and limits on the central government.

Centralized rule from Moscow has been the norm during much of Russias history. This tra dition has been ruinous to liberty and has stifled the entrepreneurial culture that is now need ed to spur economic growth. To be sure, some central control is necessary to ensure that the emerging Russian economy is not divided up by regional governments. But seven decades of Soviet totalitarianism, and the centuries of Tsarist authoritarian rule p r eceding it, have shown the disadvantage of an over-centralized state. Whatever constitution is finally adapted in Russia, a stable relationship between Moscow and the various regions and republics desir ing greater autonomy will have to be established. Mo reover, a lasting constitutional system will require a clear delineation of powers between the federal and regional or local govern ments.

Both the Rumiantsev and Yeltsin drafts declare the supremacy of federal law over those of the republics and local gov ernments.44 Moreover, both drafts stipulate that the federal govern ment retain control over a large number of policy issues, including state, economic, ecologi cal, cultural, and national de~elopment federal transportation, roads, information and com 40 A rticles 89(5 90 41 Articles 72-78 42 Article 125 43 Article 100 44 Rumiantsev draft: Article 77; Yeltsin draft: Federal Treaty, Chapter II (2 3 10 munications and space exploration!6 Finally, both drafts proclaim Russian to be the official langua e. Other languages are allowed alongside Russian only when stipulated by federal law A Of special importance is the role granted, and protections afforded, to such non-Russian eth nic minorities as Chukchi, Khanty, and Komi. Both drafts abound with references to e t hnic autonomy, the right of nations to self-determination, and other formulations from the Soviet past Many.of-these peoples have their-own republics-within the Russian Federation, and many of them regard themselves as sovereign powers. At present, many o f them are locked in a struggle with the central government over the division of powers.

All three constitutional drafts deny a republic the right to secede even if it was annexed under duress. An example would be the Republic of Chechnia in the Caucasus. This moun tainous country fought a 150-year war against Russia and the Soviet Union, and to this day the Sunni MuslimTurks (Tatars) refuse to sign the 1992 Federal Treaty.4 Other republics such as Tuva, Komi, and Buriatia, want to negotiate local autonomy as well.

Tatarstan has declared itself an associate state inside the Russian Federation, with full sovereign powers, including the right of secession. Komi, Yakutia, and other sparsely popu lated, mineral-rich territories have adopted constitutional provi sions that contradict provisions of the existing Soviet-era constitution. For example, they proclaim themselves sovereign states and refuse to give Moscow any authority over such natural resources as diamonds in Yakutia or gold in the Chukchi region the f e deral and the local governments. The republics and local governments are protesting high levels of taxation. As their subsidies from Moscow dwindle, they are increasingly de manding that the federally collected taxes in their regions be spent locally and not passed on to the central government, where they will be wasted or given to some other region.

Article 66 of the Yeltsin constitution declares that the local executive branch of a region (or oblust) and the government of a republic are part of the unifi ed executive system of the Rus sian Federation. In addition, Article 73 would create regional presidential representatives who will surely come into conflict with elected regional authorities.

Federalism may hold the key to Russias future as a state. Russ ia has little experience in fed eralism, and all too often the assertion of local autonomy is equated with the dissolution of the federation. However, a healthy federalist system with significant devolution of power to the lower levels of government is no t only one of the best methods for preventing a return to autocracy, it also allows the aspirations of regional and ethnic groups for greater control over their lives. To this end, the framers of the Russian Constitution would do well to follow the ex ampl e s of James Madison and the authors of the U.S. Constitution: to delegate as much au 48 The contest for power extends to many areas. Taxes have become a divisive issue between 45 Article 77-1 par f 46 Rumiantsev draft, Article 77-1 par i Yeltsin draft, Art i cle 62(e 47 Rumiantsev draft, Article 83 par. 2-5; Yeltsin draft Article 59.The presidential draft is more restrictive concerning the use of non-Russian languages in ofticial business than the Rumiantsev draft 48 Rumiantsev draft, Article 7; Yeltsin draft , Federal Treaty, Preamble 49 Rumiantsev draft, Article 74; Yeltsin draft, article 56; Federal Treaty 11 thority as possible to the republics and regions, while articulating a clear procedure for the set tling disputes between regions and the federal gover nment.

This would not mean an end to the Russian state. In fact, it may be the only way to save it Principle #5: limitation of entitlements.

Each of the constitutional drafts includes numerous social rights or entitlements. The Yeltsin diift grarits const itutional rights to educatioii,iocial protection at a subsistence hni mum, medical care, housing, safe labor conditions, a minimum wage, ecological security and equal participation in cultural life.5o The draft imposes the obligation to pay taxes and also the duty to protect the environment?2 Such privileges and duties cannot be imposed with out the state heavily regulating the lives of citizens, and without giving significant powers to bureaucrats. The communist oppression thus could be replaced by the om n ipotence of a new welfare state equal and just opportunities for the development of the personality, and the achievement of the well-being of man and The Rumiantsev draft proclaims an even stronger wel fare system than Yeltsins, making the constitutional b urden upon the state even heavie1-5 The same article also talks about the state conducting a humane demographic policy, creat ing necessary conditions for the cultural development of man and society, and providing eco logic safety and rational utilization of nature.55 Chapter IV of the Rumiantsev draft reiterates numerous economic, social, and cultural rights and liberties. Among them are free medical care, paid vacations, pensions, ecologi cally pleasant surroundings, compensation for damage caused to one s health or property by [some] environmental transgression, the right to free housing for the needy and other citi zens specified by law, and education (including free tuition for universities). Moreover, ac cording to this draft, the state will be obliged to ensure freedom of artistic and technical cre ativity, along with an entitlement to participation in cultural life and to the enjoyment of state and local cultural institutions.

These are broad and largely meaningless declarations. But they nonetheless commit the government to an open-ended role in virtually all areas of life. They are poorly conceived dec larations put forward without regard for their impact on the society or government. Not even a society as rich as the U.S. can provide a fraction of b enefits promised in the Russian constitu tional drafts. With soaring medical and education costs, Russia will be bankrupt long before it can implement these noble promises. Furthermore, it is the creative energy of the citizens,not the welfare bureaucracy , that is necessary to provide a reasonable standard of living. In fact these declarations betray a lack of confidence in the people, who are deemed unable to take care even of their own culture without guidance from the state I The Rumiantsev draft procla i ms that the social goal of the Russian federation is to provide 56 50 Yeltsin draft, Articles 43-49 51 Article50 52 Article53 53 Article 8 54 Article 8, par. 2 55 Article 8, par. 3 56 Chapter IV. Economic, Social, and Cultural Rights and Liberties; Articl e s 34-42 12 CONCLUSION The seven hundred deputies of the Constitutional Assembly meeting in the Kremlin's Mar ble Hall have a once-in-a-thousand-years opportunity to adopt a constitution to lay a secure foundation for democracy and economic prosperity in R ussia. That task will not be an easy one.

Although&lled into being by Presiient Bo& Yeltsin to overcome the' political paralysis of the hard-line-dominated parliament, the Assembly has a higher responsibility: the writing of a constitution which can carry Russia safely into the distant future, not simply overcome the problems of the present.

As such, the Assembly must go beyond the draft constitution put forward by Yeltsin. There are in fact several competing texts to consider, the most prominent being the Rumiantsev draft advanced by the parliament, as well as an unabashedly communist one pr oduced by loy alists of the old Soviet Union.

Although the Yeltsin and Rumiantsev drafts have a number of positive features, neither ade quately addresses a range of issues which are central to Russia's future. These include protec tion of individual right s, protection of property rights, the separation of powers in the federal government, the establishment of a federalist system which limits the central government's power, and the problem of entitlements. Although Yeltsin's is far superior to that of Rumi antsev-and certainly when compared with that of the communists-it nevertheless has some worrisome aspects that the Assembly must address.

Among the most important are the overconcentration of power in the office of the president.

While that may be an appr opriate remedy to the current standoff between the reformist presi dent and the hard-line parliament, it would not be a positive development for Russia's long term future. As he has repeatedly demonstrated, Yeltsin can be trusted with the exercise of grea t power. But in creating such an institution, thought must be given not to those who use the power well but to those who are likely to abuse it.

There are problems in both drafts in other areas as well. Both the Yeltsin and Rumiantsev drafts grant open-end ed entitlements which may prove to be either impossible to honor or ru inous in execution. They also impose too many restrictions on individual liberty that future governments could exploit to silence political opponents. Correcting these problems now cer tainly will be far less trouble than attempting to correct them later, if they can then be cor rected at all.

With little experience, facing enormous pressures, and desiring to move quickly to rescue their country from its current difficulties, the delega tes to the Constitutional Assembly ulti mately bear an inescapable responsibility for the future of their country and its role in the world. In the final analysis, a constitution is a device to protect the people from their own gov ernment, and must be se e n in this light if it is to be effective in ensuring liberty. It is essential therefore, that the Assembly's deliberations be focused not just on the current political crisis but on the long-term goal of ensuring democracy, liberty, and prosperity in Russ ia. dm Ariel Cohen Salvatori Fellow in Russian and Eurasian Affairs 13


Richard Fisher

Distinguished Fellow in China Policy