Sergey SHAKHRAI

Doctor of Legal Sciences, Professor, Distinguished Lawyer of the Russian Federation, Scientific Projects Supervisor of the Contemporary History Fund

Good afternoon, dear colleagues,

In my presentation I would like to attract your attention to the issue of the unique role of the President and Constitutional Court in the establishment of foundations of Russia’s statehood, development of the new Russia’s image. It is not about law or, rather, not only about law. In order to see the whole picture, we need to link the historical, legal, and political facts and to consider them within the conceptual fields of the different social sciences. That is, to look into the problem from the interdisciplinary standpoint.

I believe that the institution of the single head of state (in the form it emerged, developed and was enshrined in the 1993 Constitution), as well as the institution of constitutional justice, was not a mere logical element in the system of the division of power. These two institutions became a supporting pillar, a key matrix and, at the same time, the driving force of change. It was due to their existence and, naturally, their functioning that the transition chaos that arose in the late 1980s-early 1990s was rebuilt into the modern reality that surrounds us today. I.e., primarily the President and the Constitutional Court fulfilled a creative, a constructive function.

And, at the same time, alongside with the constructive function, both the President and the Constitutional Court (after 1993) also performed a protective function. In reality, the President of Russia as a supreme political arbiter and the Constitutional Court as a supreme legal arbiter for quite a long time played the role of a steam valve to help to relieve social pressure that accumulated in society in a situation of confrontation when the forces on both sides of the barricades were approximately equal in strength.

If we take the situation of a lingering conflict between the Parliament and the Government which had not ended in 1993 but continued into the verge of this century. Or, for instance, the no-less difficult conflicts between the regions and the federal centre. The President initiated hundreds of conciliation procedures and the Constitutional Court tried dozens of cases associated with the issue of federalism. All of this helped to keep the situation manageable and prevent various conflicts that posed a threat to the nascent statehood from becoming uncontrollable.

The single head of state and the Constitutional Court — apart from performing its legislatively established functions — efficiently ensured the political and legal protection of reforms at the most difficult stage of their implementation. In a situation of not even the lack of consensus but a direct confrontation between the elites and the branches of power, it was vitally important to have a single centre, a single leader capable of maintaining the course in spite of all hesitations and deviations.

And if we talk about the extreme importance of the existence of special legal and political mechanism to protect any projects associated with major socioeconomic transformations or, in other words, with the reforms, with the modernisation of society, I would like to remind you that one of the crucial and effective tools is appealing to the direct expression of the citizens’ will, the referendum and the plebiscite.

In Russia, this mechanism was created back in 1990. This is why I would like to make a short comment and return to that time.

Today one can hear increasingly more often that the transformations were allegedly initiated contrary to the wishes of society, even secretly from the people. But — as many of those present here remember very well — particularly in the late 1980s and in 1990, practically everybody and everywhere talked about the need in the real changes, the radical economic reforms.

To illustrate what I said, I will adduce just two examples.

For instance, on 18 September 1990, the supplement to the Komsomolskaya Pravda newspaper published a famous article by Alexander Isayevich Solzhenitsyn «How we must rebuild Russia» which stirred everybody.

The great philosopher was passionately urging to part with the past and declared that the «the clock of communism has struck». As regards the economic issues, this is what he wrote:

«..why should we continue to cling to the centralised, empty, ideologically ‘regulated’ economy that has brought the country to poverty?

— to provide the upkeep of the parasitic apparat only — otherwise there would be no last justification left for its existence».

At the same time Alexander Isayevich knew that the reforms would be difficult, and expressly warned:

«Of course, the shock from the transition to market economy, felt by the millions of people who are not ready for it, are unfamiliar with it, ought to be alleviated as much as possible.»

Or another quotation:

On 19 October 1990, the 4th session of the Supreme Soviet of the USSR (mind you, not of Russia but of the USSR) approved the Main Directions of Economy Stabilisation and Transition to Market Economy.

The third paragraph of this document reads:

«The situation in the economy continues to aggravate. The production volumes decline, the economic links become severed. The separatism gains momentum. The consumer market is exhausted. Budget deficit and the state’s solvency have reached their critical levels. The antisocial phenomena and criminality are growing. The people’s life is getting increasingly more difficult, their motivation for labour is deteriorating, their belief in future is collapsing.»

And after a few more lines, the conclusion:

«Transition to market is the only alternative. The entire global experience has proved the viability and effectiveness of the market economy. Our society’s transition to it is fully dictated by the people’s interests and the goal of such transition is to create a socially-oriented economy, to make the whole production industry responsive to the consumer’s needs, to overcome the deficit of commodities and shame of the queues, to really ensure the citizens’ economic freedom...»

It means that, in that situation, the radical economic reforms were thought by everybody to be the only possible solution.

However, if we want to be honest, we must say that, with the growth of social activity, political creativity and passionate striving for changes, nobody — neither in the USSR nor in Russia — did not seriously think about the political and legal protection of the orientation towards the modernisation. While in a situation of dramatic changes there is always a huge risk of falling into the civil confrontation, into an open conflict.

Our great compatriot, a Nobel Prize winner Lev Laundau had once said, «If the collapse of the Soviet system occurs without the Third World War, it will be a miracle».

As the history showed, this miracle did occur. Of course, the transition period saw many tragic events but, still, there was no Third World War.

I think that, to a large extent, it was because of the fact that the processes of changes were gradually becoming more or less manageable, and various safeguard mechanisms such as the special political and legal tools were being created.

Returning to the history of 1990, I would like to say that we began to work on the draft Russia’s law «On the referendum» immediately after the First Congress of People’s Deputies of the RSFSR. I believed then and I still believe that this law was crucial for the success of political transformation and winning in that situation.

Today, naturally, we can provide an in-depth scientific justification of this decision. But at that time, however, our logic was very simple: if the situation in the country rapidly becomes very tense it is better for the people to go to the voting stations to determine who is right and who is wrong rather than to the barricades. And this is why a system, a mechanism had to be created that is called a referendum everywhere across the world. And later, after October 1990 when this law was adopted this mechanism had saved the situation many times.

By the way, soon after that I came across a definition of democracy offered by a renowned sociologist Adam Przeworski: he called democracy a method created for resolving conflicts without political adversaries killing each other¹.

From this standpoint, our law on the referendum was, in all senses, one of the key institutions and a crucial protective mechanism of democracy. And, as you remember, it worked. It provided an opportunity to let the steam out, release the destructive energy.

The same function of sociopolitical steam valve was played buy the Constitutional Court whose 20th anniversary we are celebrating today. With an approximate balance of power in the conflict, each party believed they would be able to win in court rather than on the barricades. This is exactly why in the 1990s the Constitutional Court held a great number of extremely important, highly-visible, high-profile trials in the course of which, on the one hand, serious conflicts were being resolved. On the other hand, as a result of the Constitutional Court’s actions, a robust legal framework, the legal paths were established for the legislative process participants to move along to ensure the creation of an appropriate legal reality — the one that complies with the norms and principles established in the Constitution.

The Constitutional Court, however, passed through several stages in the course of its evolution. Initially it succumbed to the temptation of engaging in politics and began to play an active role in this field. I think that, to an extent, it was associated with the then effective norm concerned with the Constitutional Court’s right to provide its decisions on its own initiative. According to item 2, article 74 of the Law on the Constitutional Court of the RSFSR as of 6 May 1991, the Court had a right to offer — on its own initiative — its conclusions concerning compliance with the Constitution of the actions and decisions of the President and supreme officials of both the RSFSR and its member republics, compliance with the Constitution of the international and internal agreements, laws and other regulatory legal acts, etc.

A small detail is particularly noteworthy: the Court could — on its own initiative — offer its judgment of the President’s actions if the Court’s tentative conclusion concerning the lack of such compliance could provide the grounds for a «resignation from office or triggering another mechanism to hold them accountable». I.e. this norm was inherently provoking the Court into engaging in the political activities.

This resulted in the situations when the Court was hurriedly playing into the hands of the Supreme Soviet, violating its own procedures on the way. If we recall the story about a well-known Court’s decision concerning President Yeltsin’s Decree No 379 as of 20 March 1993, this decision was made even before the Decree was signed. It means that the Court rendered unconstitutional a yet unsigned act and denounced the actions that have not been committed yet.

After the October 1993 events, the Constitutional Court’s activities were arrested, the new Federal Law was adopted and as early as in the mid-1990s a systematic and constructive work began. Throughout the entire transition period the Court played an extremely important norm-setting, constructive and stabilising role, smoothing political conflicts through legal mechanisms.

I could continue talking about this subject for a very long time, but I will do something better instead. My book devoted to the Constitutional Court trials in which I was honoured to participate was released today. I think the documents and facts will tell about that time and the role of the Constitutional Court more vividly and objectively than us the contemporaries, witnesses and participants in those trials.

I will only say that the Constitutional Court of the Russian Federation played and still plays an exceptional role in the strengthening of the foundations of our statehood. And now, when the string of serious conflicts seems to have stopped and political life became stable, it does not mean that the role of the Constitutional Court is finished and it is no longer needed in its current form, as a traditional conservative body. This assumption is completely wrong. The Constitutional Court is, in fact, our country’s defence shield. It would hardly occur to anyone to abandon the mechanisms for maintaining our country’s integrity and security only because everybody is talking about peace and stability. The same is true for the Constitutional Court. This unique body, unique mechanism should continue to be an independent supreme arbiter on the most crucial, most profound issues related to our statehood. And, God help us not to need to go to the Constitutional Court with such problems for as long as possible.

As the duty of politeness demands that I should pass the floor to other participants in our plenary session, I would only like to say one thing as a conclusion of my presentation.

Democracy is not synonymous to the absolute collegiality, it does not negate undivided authority. Every country — particularly the country that set out on a path of changes, transformation and modernisation — should have a single decision-making centre and a single person who takes upon himself the responsibility for these decisions and their consequences. It is particularly important in a situation of crisis as, when the battle is being fought, the parliamentary debates become the things from a different reality.

Even the institution of vice presidency proved to be unviable in our situation.

Both the USSR and the young Russia used to repeat the same mistakes again and again. We would first create the institution of vice presidency and then reap its consequences. In August 1991 we saw Vice President Yanayev and the Swan Lake on all TV channels. And then the October 1993 occurred, with Vice President Rutskoy’s calls to assault the Mayor’s Office and Ostankino. As the saying goes, those who do not remember their own history are doomed to relive it again and again.

Therefore I would like to end my presentation by saying that the experience of the past twenty years proves convincingly that the key institutions that ensured Russia’s transition to a modern sociopolitical system, a new economy, were the President and the Constitutional Court that ensured the implementation of the «plan of future» embedded in Russia’s Constitution.

Now, when I’m reviewing the documents, verbatim records, and photographs from 1991, I am sometimes envious of that vibrant and highly-charged time. There was so much energy and optimism! For me, the 1990s will never be the «lost» or «cursed». It was the time when the new Russia was being born.

And, as an emotional conclusion of my speech, allow me to quote myself — just two short quotations from the verbatim record of my speech in May 1991 when during the 4th Congress of People’s Deputies I was presenting the Draft Law on the Constitutional Court for the approval:

1. Przeworski Adam: Democracy and the Market. Political and Economic Reforms in Eastern Europe and Latin America. Cambridge, 1991. S. 12, 95, 131.