Copyright © 1990 by Lowry Wyman
Published by Ab Imperio
Quarterly (2005) , pp. 373-379.
, pp. 373-379.
1989 will be remembered as an extraordinary year — a year in which millions took to the streets to demand freedom, a year in which revolutionary governments started dismantling the apparatus of totalitarian socialism. The struggle is far from over, but its beginnings have been marvelous to behold.
D. Sakharov helped to foster these beginnings. For years, he tirelessly championed the
rights and liberties of people all over the world, but especially in the Soviet Union. He
paid a terrible price for his efforts. Suffering exile, he also shouldered the burden of
bringing the even greater suffering of others to world attention. Fortunately he lived
long enough to witness the early fruits of his painful labors, and was able to participate
in the earliest stages of his countrys, and
Sakharovs draft differs fundamentally from the tone, organization, and preoccupations of the U.S. Constitution. It is both broader and narrower than our Constitution, addressing lofty global concerns as well as highly particularized elements that we would consider more legislative than constitutional (although some of our own states constitutions also cover numerous legislative details). It should be read in light of the political and historical circumstances that faced Sakharov, the realities of current Soviet experience, as well as in light of its tentative, heuristic character. Although I believe that key features of U.S. constitutional theory, practice, and style suggest vital improvements — a theme I shall return to — this draft is a powerful point of departure, a poignant gift from a good and great man. Its first paragraphs, particularly, project a vision of global political goals and arrangements that is bold, refreshing, and as revolutionary in its time as the U.S. Constitution was two centuries ago.
Sakharovs draft was entirely his own. Although appointed to a committee that President Gorbachev commissioned to write a new Constitution, Sakharov declined to participate on a joint draft, believing that the committee as a whole would fail to address many important issues. According to one of Sakharovs close friends, Gorbachev was quite worried by this and dispatched an emissary to determine whether Sakharov was accepting or declining committee membership. Sakharov answered that he was not declining, he merely wished to write a draft of his own. As of early February 1990, the Committee had still not met. Sakharovs Constitution is the only draft in existence.
As suggested, this draft was intended to stimulate debate on the key issues Sakharov believed had to be resolved in order to set up a workable government. In preparing it, however, Sakharov also suggested specific ingredients of a balance among lofty principles, pragmatic governance, and Soviet experience. This was no simple task, as each days news confirms. There are many who doubt that a workable compromise — whether along lines suggested by Sakharov, or any others — can ever be achieved. Sakharov was not among them. He focused upon identifying and addressing the questions that such a compromise would have to resolve. His proposed constitution, albeit tentative, deserves respectful consideration.
draft would create a new, voluntary
Language, as an extension of the nationalities problem, is similarly problematic. How does one govern a vast geographic area without a common language? Yet Russian, having been imposed, is hated by many of the constituent nations. Sakharovs draft deftly provides that each republic may choose whatever official language or languages it wishes; the draft further asserts that the language used between nations and nationalities shall not be determined as a constitutional principle; yet the draft also provides that Russian shall be the official language of inter-republican relations. Thus, each national group may use its own language; as between national groups, any language is permissible; but as between the governments of the constituent republics, a single language being necessary, Russian is designated.
Because Sakharov was attempting to establish a different kind of government and social system — a non-totalitarian, non-socialist society — he found it necessary to prohibit specific evils of the current system, and to define specific rights and relationships that would remedy current flaws. If adopted, these provisions might some day appear as anachronistic as our third amendment, which prohibits the quartering of soldiers in private homes during peacetime. Yet at this juncture of Soviet history, these provisions are needed. For example, Sakharovs draft states that the President shall not combine his post with a leading post of any party. (Paragraph 35) Even though this draft eliminates the current Constitutions famous Paragraph 6, which grants primacy to the Communist Party, as well as other provisions that undergird the current socialist theocracy, and even though Paragraph 7 of the draft appears to prescribe a multiparty system, the drafts explicit Paragraph 35 prohibition targets a specific evil well known to Soviet experience, namely, the confusion between politics and government and the conflict of interest inherent in a party boss being chief of state.
Currently, Gorbachev is General Secretary of the Communist Party, head of the legislature, and head of state. He was chosen by the newly constituted Congress of Peoples Deputies to serve as Chairman of the Supreme Soviet, which is elected by the Congress; under the current Constitution, the Chairman of the Supreme Soviet also serves as head of state. Currently, the Council of Ministers is the supreme executive power of the government; the chairman of that body is the Prime Minister — that is, the chief executive officer of the government (currently, Nikolai Ryzhkov). Nothing in the current Constitution bars Gorbachev from also serving as Prime Minister, thereby serving as head of the party, head of the legislature, head of the government, and head of state. Stalin did.
constitution draws clearer lines among these various roles, although it also establishes
areas of shared power. It vests supreme legislative power in a Congress of Peoples
Deputies, which is a bi-cameral legislature (one chamber representing territories, the
other, national groups). The Congress elects a smaller body (number not specified), called
the Presidium, which merely serves to coordinate congressional activity. This new approach
contrasts sharply with current law, under which the Presidium has frequently usurped
legislative powers. Furthermore, Sakharovs draft forbids Presidium members from
holding any other leading posts in the Government of the
draft retains the Council of Ministers. Its members, including the Chairman (Prime
Minister), are appointed by the Congress. The President of the
draft offers only three sentences regarding the judiciary. These include a reference to a
constitutional court, whose jurisdiction shall include the review of problems and
cases of a
the spirit of the debate that Sakharov hoped to stimulate, I here offer some observations
and criticisms. Again, the first few paragraphs are very powerful indeed. Possibly they
should appear as a preamble. The structure of the remaining document needs refinement. In
general, a constitution should serve above all to provide the ordinarily intelligent
reader with a clear overview of how the government functions; what its parts can and
cannot do, and how those parts check and balance each other. Sakharovs draft adopts
many elements of a tripartite model, of a federal structure, and of a bill of rights, but
these elements are not presented in a sufficiently orderly or organized fashion, and in
some cases are not sufficiently elaborated. The powers of the Congress, for example, are
barely mentioned (with the exception of budgetary oversight and control of the Central
indicated, the judicial power is also barely mentioned, although the draft prescribes
judicial review of problems and cases of a union and inter-republican
character. Given the current status of the judiciary in the
Similarly, lack of credible judicial oversight of governmental activities, such as prosecutions, leads to prevalent abuses of individual rights. That is why Soviet citizens must frequently resort to international media and world opinion to effectively redress violations of their constitutional rights. It is also why government officials often assert that rights enumerated in the Constitution and the International Covenants on Human Rights are not directly enforceable.
of this problem, the many rights enumerated in Sakharovs draft run the risk of not
being enforced. For example, the draft guarantees the right to be the master of
[ones] own physical and intellectual abilities. This provision addresses the
problem of compulsory labor. Under current law, including the Constitution, everybody must
work. Nobody may refuse to accept a bureaucrats job assignment, and the criminal law
provides stiff penalties for evading socially useful work. This permits
prosecutors and bureaucrats to define work as they choose, and to compel people to fulfill
Party or State directives. For example, Nobel Laureate Josef Brodsky, a poet, was
prosecuted for evading socially useful work because he spent his intellectual and creative
energies as he chose, not as directed. Under Sakharovs Constitution, Brodsky would
theoretically be free to work as he chose, but he might not be able to enjoy
this right unless the courts were explicitly empowered to enforce it.
point leads to my main criticism of Sakharovs draft. In another document produced
during this same period — a draft law on governmental powers during war or civil
emergencies — a working group under Sakharovs direction adopted a style of
composition that differs from other
constitution whose format enables the citizenry has to be very long and
detailed if its purpose, in fact, is to limit the government. Its format is efficient only
for constitutions of enslavement. This stylistic point is especially important when, as in
Sakharovs draft, the heretofore terra incognita of economic rights and freedoms must
guarantee, indeed encourage and celebrate, a multifoliate diversity of activities
previously condemned and proscribed.
broad features and particulars of Sakharovs constitution, preceded with a preamble
composed of his first powerful paragraphs, modified otherwise along lines here suggested,
should be poured into a freedom format that clearly enumerates the limited
powers of the Union government, specifies the allocation of responsibility among its
parts, and informs the government what it may, and may not, do. Probably the best way to
accomplish this last, crucial goal, is by way of a Bill of Rights. So modified,
Sakharovs constitution could become a truly historic political charter.
Note: This essay was written shortly after Academician Sakharovs death and reflects one American lawyers scholarly perception of the Sakharovs constitutional draft in the late Soviet period. As such, it is a valuable historical document in itself, serving as a natural link between the two epochs, the past and the present. See Sakharov's Constitution
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