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ENFORCING THE BILL OF RIGHTS IN THE TWILIGHT OF THE SOVIET UNION

Peter B. Maggs*

*1049 Two centuries after the adoption of the United States Bill of Rights, the Soviet Union moved to develop an enforcement mechanism for its own bill of rights. Both the Stalin Constitution of 1936 and the Brezhnev Constitution of 1977 had contained a bill of rights, but there had been no effective mechanism for enforcement. In 1988 a constitutional amendment authorized the creation of a Committee for Constitutional Supervision, whose powers included enforcement of the USSR Constitution's bill of rights.1 In the spring of 1990, the Committee for Constitutional Supervision began functioning in the Soviet Union, with the power to suspend legislation infringing on citizens' basic rights and liberties. On August 26, 1991, however, the Committee's Chairman, Sergei Alekseev, proposed disbanding the Committee. He called it a body without power, *1050 set up for appearances only. He suggested that it be replaced with a Constitutional Court. On September 5, the USSR Congress of Peoples Deputies adopted a new Declaration of Rights incorporating rather vague provisions providing for judicial enforcement. During the period between the spring of 1990 and the late autumn of 1991, the Committee decided a number of important cases. This article examines these decisions, their implication for the protection of individual rights, and their connection with the apparent decision to move to a different form of enforcement of individual rights.

Worldwide, there are a variety of systems of the legal enforcement of constitutional provisions.2 Possible patterns include:

There are also different types of actions that courts with the power of review for constitutionality may have the power to take when they find a law to be unconstitutional. Possible patterns include:

A. The court refers the law back to the legislature for reconsideration;

B. The court suspends operation of the law and refers the law back to the legislature for reconsideration;

C. The court invalidates the law;

D. The court decides the case before it, refusing to apply the unconstitutional law.

The choice of a model may depend upon whether a country has a legal system in the civil law or common law tradition. Under the common *1051 law tradition in the United States (following model IIID above), a Supreme Court holding of unconstitutionality creates a precedent binding on the lower courts, though the Supreme Court itself may, given strong enough reasons, reconsider its precedents.3 In civil law countries, even a supreme court holding theoretically does not create a binding precedent (though follow higher court decisions).4 Because of the inability of ordinary courts to create binding precedents, civil law countries often have created special tribunals with the power to invalidate laws in a way that is binding upon all other government bodies. In countries with governments based upon a system of checks and balances, it seems quite appropriate to use the judicial power to restrict the legislative power. However, in countries with theories of supremacy of the democratically elected legislature, giving such a power to a court appears undemocratic. These two factors influenced the initial Soviet choice to give the powers to a committee related to the legislature rather than to a court and to limit its powers rather sharply.

Between 1988 and 1990 there were a number of developments in legislation on the Committee. Constitutional amendments of 1988 called for the creation of the Committee with powers like those in models IA, IB, and IC above, depending upon the source and type of legislation.5 Further amendments in 1989 and 1990 altered its powers somewhat.6 A 1989 statute provided details on the operation of the Committee,7 including a key restriction in the transition provisions accompanying this statute:

The intent of this legislation was to keep the Committee away from the political minefield of relations between the USSR and the republics, *1052 while allowing it to enforce the Bill of Rights of the USSR Constitution, as well as international human rights treaties ratified by the USSR. Such treaties were considered to be USSR laws; the Committee could invalidate republic legislation contrary to these treaties.

What went wrong? Why was the Soviet Union unable to follow the successful experience of the United States and other countries in developing an enforcement mechanism for constitutional rights? This article suggests at least four basic problems: (1) the decision to assign constitutional adjudication to a nonjudicial body; (2) the assignment of jurisdiction to rule directly on the constitutionality of laws rather than on legal issues in litigated cases; (3) the nonjudicial conduct of the head of the Committee in commenting by press conference and television interview on pending cases; and (4) the appearance of bias of the Committee toward the Party-military-KGB oligarchy.

On May 16, 1990, the Committee issued its first four decisions. The decisions announced that the Committee, of its own accord, would consider four areas of Soviet law where there had long been complaints of abuse of individual rights. The areas the Committee selected were the residence permit system,9 the denial of access to courts for employment disputes, 10 laws and administrative regulations on substandard quality consumer goods, n11 and an edict by President Gorbachev restricting demonstrations in central Moscow. 12

On June 21, 1990, the Committee rendered a ruling on the issue of denial of access to courts by discharged employees who had held managerial positions. 13 It held that such denial violated the USSR Constitution, international human rights treaties to which the USSR was a party, and an International Labor Organization treaty to which the USSR was a party. This decision could be seen as in favor of individual rights, because it protected against arbitrary firing. Or it could be seen as a means of entrenching the Party "nomenklatura" in its job positions. At this point, it was too early to tell what direction the Committee would take.

Also on June 21, 1990, the Committee decided, at the request of Chairman A.I. Lukyanov of the Supreme Soviet, to take up the issue of the provision of housing for military personnel.14 The Committee determined *1053 of its own accord to take up issues of the legal guarantees of the presumption of innocence.15

On September 13 and 14, 1990, the Committee issued rulings in four cases that it had earlier decided to consider, and it decided to take up four new cases. It reported progress in getting a legislation on residence permits declassified,16 found unconstitutional a ban on demonstrations in Central Moscow,17 found that certain criminal procedure provisions violated the presumption of innocence,18 and held that decrees by which ministries absolved themselves of responsibility for substandard- quality consumer goods violated consumer rights.19 At the request of President Gorbachev, the Committee decided to consider the constitutionality of Russian Republic legislation prohibiting the holding of political offices by government officials.20 On its own accord it decided to consider the compulsory treatment of alcoholics,21 deprivation of citizenship,22 and the application of unpublished legislation.23 At this point, the Committee began to look like a real potential force for protecting individual rights.

On October 25, 1990, the Committee rendered a decision that legislation on the compulsory treatment of alcoholics and drug addicts was unconstitutional and in violation of international human rights treaties.24 The Committee held that the "treatment" resembled criminal punishment and so could not be applied to persons who had committed no *1054 crime. It also found the summary procedures for committing addicts to treatment to be improper.

On the next day, October 26, 1990, the Committee decided that the residence permit system violated the Constitution, USSR legislation, and international human rights treaties.25 Under the residence permit system, Soviet citizens could move to cities only with police permission, permission that the police could arbitrarily refuse. This system was made necessary by the long-standing policy of providing virtually free housing for city residents, a policy that guaranteed demand would exceed supply. The Committee ordered that the residence permit system be phased out gradually as housing was converted to a free market system.

All the decisions discussed so far truly have involved the protection of citizens' freedoms under the Bill of Rights of the Soviet Constitution or international human rights treaties. If the Committee had stopped here, it would have had an admirable record. However, on the same days as it rendered the alcohol treatment and residence permit decisions, it rendered decisions on the issues submitted to it by President Gorbachev and Supreme Soviet Chairman Lukyanov. These decisions and subsequent decisions on matters submitted by leaders of the Communist Party in their capacity as government officials cast dark shadows on the record of the Committee, making it appear to be an accomplice in the Party's attempt to keep, through legal manipulations and military force, the power that it could never gain in free elections.

The case brought by President Gorbachev involved a Russian Soviet Federated Socialist Republic law that barred heads of government agencies from simultaneously being officials of political parties.26 The Committee found that this ban infringed upon the constitutional rights of both the government officials and the members of the Party. It also found a contradiction with both the International Covenant on Civil and Political Rights,27 the International Covenant on Economic, Social, and Cultural Rights,28 and an International Labor Organization Convention. A dissenting opinion argued that the Committee was infringing upon the rights of the Russian Republic, as a sovereign state, to set qualifications for the holding of public office. The dissent argued that the law did not prevent public officials from holding offices in political parties, but rather *1055 prevented officials of political parties from holding jobs as public officials. This decision obviously directly favored the Communist Party and also favored the center in its struggle with Yeltsin's Russian Republic. While the decision was taken in the name of the constitution, human rights treaties, and a labor protection treaty, it gave a strong appearance of interference in the delicate issue of Republic/USSR relations, an area that the implementing law on the Committee had placed out of bounds.

The case brought by Chairman Lukyanov involved attempts by Latvia, Lithuania, Estonia, and Moldova to nullify USSR legislation requiring local authorities to provide low-rent public housing for retired military and their families ahead of local citizens on waiting lists.29 The Committee, over a strong dissent by a member from Georgia, held that failure to provide such housing violated the guarantee of the right to housing in Article 44 of the USSR Constitution. The dissent argued that military families should have an equal right to housing, but not a preferential right. The majority opinion made it appear that the Committee was allied with the Soviet policy of military occupation of the Baltic states. Furthermore, like the previous case, the decision appeared to violate the spirit of the compromise under which the Committee was created, a compromise that had excluded the Committee from considering issues of relations between the USSR and the republics.

On November 29, 1990, the Committee held that the Soviet practice of issuing secret legislation governing citizens' rights violated the constitution and international human rights agreements.30 The Committee provided a three-month grace period for the publication of such legislation, after which it would be invalid if unpublished.31 On February 15, 1991, the Committee issued a follow-up decision. This decision modified the first decision by indicating that the automatic lapse rule of the first decision would apply only to legislation that limited citizens' rights, not to legislation that expanded citizens' rights. A few long-unpublished legislative acts were actually published during 1991 as a result of the Committee's 1990 decision.32

*1056 On December 21, 1990, the Committee returned to the issue of military housing raised by Chairman Lukyanov. It held that Latvia's refusal to provide preferential treatment in granting resident status to Soviet troops on active duty and their families was unconstitutional and violated human rights treaties.33 Again the Committee gave the appearance of favoring a policy of Party-led Soviet imperialism. The holding that international human rights treaties required Latvia to quarter Soviet occupation troops was, perhaps, the Committee's Dred Scott.

On February 14, 1991, the Committee issued a ruling on legislation that provided that emigrants to Israel automatically lost their Soviet citizenship and on other legislation that provided for loss of citizenship without the possibility of court challenge. It found both types of legislation to be in violation of the constitution and international human rights agreements. 34

The next day, the Committee returned to a question raised by Chairman Lukyanov, that of Lithuanian legislation creating a number of crimes against the state, such as "the creation of antistate organizations and active participation in their activity" and participation in the operation of "foreign" political organizations on Lithuanian territory. 35 This legislation was clearly aimed at the ongoing attempt by the Communist Party of the Soviet Union to maintain control of Lithuania by military force. Again the Committee decided in favor of the Party, finding that this legislation violated a variety of articles of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, an International Labor Organization treaty, and various articles of the USSR Constitution. The decision also drew upon statutory provisions allocating powers to enact criminal legislation between the USSR and the republics.

Even more than the other decision, this decision must have discredited the Committee in the eyes of the republics. The Committee rendered this decision on February 15, 1991, just a month after Soviet tanks had rolled through the capital of Lithuania, killing civilians and seizing television *1057 broadcasting facilities.36 The idea that human rights treaties made it illegal for Lithuania to punish those conspiring with foreign invaders to destroy democracy was laughable (as a colleague has suggested, real chutzpah). The heavy reliance on laws allocating USSR and republic powers appeared to violate the compromise that limited the Committee to human rights issues.37

In mid-February 1991, the Committee acted on a request by the Russian Republic that it consider military regulations calling for joint military-police patrols in Soviet cities.38 In April it upheld the regulations, with the exception of a provision instructing the military to implement not only government but also Communist Party policy.39 Constitutional amendments in March 1990 removed the constitutional provisions that had provided for the "leading role of the Communist Party" and put all political parties on an equal basis.40 In view of the constitutional amendments, the Committee had little choice but to invalidate the particular provisions of the decree. Although this was its first decision that in any way went against the central authorities and the Party, it probably did little to improve the reputation of the Committee in the eyes of the republic officials. The decision effectively upheld the removal of republic control over local law enforcement, and thus once again appeared to break the promise that the Committee would not intervene in disputes over USSR versus republic power.

In June 1991, the Committee held that Lithuania was violating the USSR Constitution and international human rights treaties by requiring rejection of USSR citizenship as a condition of acquiring Lithuanian citizenship and by treating USSR citizens as foreigners.41

Party and anti-Party elements was underway in a number of republics. One aspect of this struggle was the attempt to remove Party appointees and Party organizations from institutions and enterprises under republic jurisdiction. *1058 On July 20, 1991, President Yeltsin issued an edict banning party organizations at the work place in the Russian republic. 42 On July 27, 1991, the Constitutional Supervision Committee formally asked the Russian Republic to suspend operation of the decree until the Committee could consider it.43 The Chairman of the Committee argued in a press conference that Yeltsin should suspend his edict.44 Backed by his Russian Republic Council of Ministers,45 President Yeltsin refused to suspend the edict.46 Once again, the Committee found itself, in the name of constitutional rights, supporting the Party against republic autonomy. Most importantly, however, the Committee put itself in the position of calling a press conference to ask for suspension of action while it considered its constitutionality.

Although the Committee had asked Yeltsin to suspend his decree removing Party organizations from the workplace, during the coup of August 19-21, 1991, it failed to ask the coup leaders or their followers to suspend their repressive measures.47 On August 19, TASS, operating under restrictions imposed by the coup leaders,48 distributed the following censored version of a statement by the Chairman and four members of the Committee:

Two days later, as the coup was falling apart, a censored TASS report said that the whole Committee issued the following statement:

The author of this article is in the possession of an uncensored copy of a draft declaration that the Committee considered issuing on August 21, before the fall of the coup made the issue moot. This draft is considerably stronger than the statements in the censored TASS reports. It calls upon the Supreme Soviet at its August 26 session to "disband this group that calls itself the 'Soviet Leadership' and the bodies created by it."51 However, it contains no appeal from the Committee to the group itself or to government agencies obeying the group to cease their actions. The Committee cannot fairly be blamed for failing to order suspension of actions of the coup committee. Under the law, it could not do this without going through procedures that take many days. Nor could it have published an attack on the coup leaders through TASS, Izvestia, Pravda, Central Television, or other media subject to censorship by the coup leaders. However, its failure to call a press conference calling for suspension of the coup leaders' acts and its failure to use available uncensored media contrasts most unfavorably with the action of the Committee just a few weeks earlier in calling a press conference asking President Yeltsin to suspend his decree on departization pending consideration by the Committee. Thus, the Committee may have appeared to the newly powerful leadership of the Russian Republic to have applied a double standard.

On August 21, when the coup was collapsing, members of the Committee met together with the Presidium of the Supreme Soviet. The Presidium issued a decree calling the Vice-President's takeover of power unlawful and calling for an investigation and the prosecution of those responsible for violations of the USSR Constitution.52 On August 23, the USSR Supreme Soviet Committee on Legislation and Legal Order issued a detailed legal "Conclusion" of why the coup edicts and decrees were illegal.53 This "Conclusion" filled the vacuum left by the Constitutional Supervision Committee's failure to issue a similar document.

It is difficult to assess the attitude of the Committee during the coup, because only censored versions of its public statements are available. It is clear that Committee members did not avail themselves of the many uncensored channels available for expressing their views on the coup. The failure of the Committee members to speak out through uncensored *1061 channels against the coup might be explained as appropriate self- restraint. The problem is that the Committee Chairman had, unwisely in the view of this author, spoken out very frequently on radio, television, and in the press on other issues before the Committee. After the failure of the coup, the Committee Chairman spoke out once more in a televised speech:

By September 1991, the Committee for Constitutional Supervision appeared to have no future in its present form. Many, rightly or wrongly, must have thought of it as yet another of the institutions by which the Party-military-KGB complex tried to hold onto power over the republics. The Committee Chairman himself rightly pointed out that the Committee lacked adequate jurisdiction, because it could decide only issues of individual rights and lacked effective means of enforcement. On September 5, 1991, the USSR Congress of People's Deputies adopted a Declaration of Human Rights and Freedoms55 based on a draft prepared in 1990 by the Institute of State and Law of the USSR Academy of Sciences.56 This declaration provided that all rights and freedoms it guaranteed were entitled to judicial protection. It is unclear if this meant that Soviet courts were to enforce the Declaration directly or if a constitutional court was to be created with sole power to enforce it. It is clear, however, that it envisioned transfer to the courts of powers held by the *1063 Committee on Constitutional Supervision. However, these questions became moot with the dissolution of the Soviet Union.

The Committee continued to be active right up to the last days of the old Soviet system. A TASS dispatch dated November 29, 1991, reported a news conference by the Committee's Chairman. He pointed out a number of real civil rights problems -- vagueness in the definition of criminal offenses and inadequate legislative safeguards on search and seizure. As often before, the Chairman also overstepped the bounds of the Committee's mandate, this time to take sides in the territorial dispute between Armenia and Azerbaijan. A TASS dispatch dated December 11, 1991, showed that the Committee was continuing to exceed its jurisdiction, by "considering documents concerning the agreement to set up a Commonwealth of Independent States." The Committee's last hurrah, reported by TASS on December 12, 1991, stated that multilateral treaties on human rights would remain in force, and again going beyond its mandate, opined that the same principles applied to the Nuclear Non-Proliferation Treaty. On December 23, 1991, the Committee decided to disband, in view of the demise of the Soviet Union.57

It is appropriate to close with a remark made in 1835 by the always perceptive Alexis de Tocqueville comparing a hypothetical jurisdiction like that of the Committee on Constitutional Supervision with the actual system he observed in the United States: