Commentary
on
Sakharov's Constitution
Copyright © 1990 by Lowry Wyman
Published by Ab Imperio
Quarterly (2005)
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.
Andrei
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 country’s, and
Sakharov
died on
Sakharov’s
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.
Sakharov’s
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 Sakharov’s 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.
Sakharov’s 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 day’s
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.
Sakharov’s
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. Sakharov’s 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, Sakharov’s 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 Constitution’s 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 draft’s 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 People’s 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.
Sakharov’s
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 People’s
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, Sakharov’s draft forbids Presidium members from
holding “any other leading posts in the Government of the
The
draft retains the Council of Ministers. Its members, including the Chairman (Prime
Minister), are appointed by the Congress. The President of the
Sakharov’s
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
In
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. Sakharov’s 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
Bank).
As
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.
Because
of this problem, the many rights enumerated in Sakharov’s draft run the risk of not
being enforced. For example, the draft guarantees “the right to be the master of
[one’s] 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 bureaucrat’s 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 Sakharov’s 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.
This
point leads to my main criticism of Sakharov’s draft. In another document produced
during this same period — a draft law on governmental powers during war or civil
emergencies — a working group under Sakharov’s direction adopted a style of
composition that differs from other
A
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
Sakharov’s 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.
The
broad features and particulars of Sakharov’s 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,
Sakharov’s constitution could become a truly historic political charter.
Note: This essay was written shortly after Academician Sakharov’s death and reflects one American lawyer’s scholarly perception of the Sakharov’s 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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