Lowry WYMAN

SAKHAROV’s CONSTITUTION^[1]

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 Eastern Europe’s, social and political reforms.
Sakharov died on December 14, 1989, worn out. Among his last labors, he prepared a draft constitution for a new Soviet Union. It was a “discussion draft” frequently revised, even in his final days – that attempted to articulate the great themes and necessary details of a new compact among 300 million people of a hundred nationalities, with scores of languages and numerous alphabets, all sharing a common heritage of bondage to a lawless, totalitarian theocracy.
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 Union – the Union of Soviet Republics of Europe and Asia. Contemplating that its constituent republics might wish to join on different terms, the draft permits special protocols to be appended to the Union treaty signed by each joining republic. (Recall that Texas joined the United States under a special protocol.) It even contemplates republics combining their respective governments. It subsumes questions of “sovereignty” within innovative permutations of federation and confederation – all within the context of a Union that is itself explicitly governed by world norms of lawful government, individual rights, environmental protection, peaceful dispute resolution, etc. In this and several instances, Sakharov seems to be asserting that the problem, as currently framed, may be insoluble, but that by changing the context of the problem, by transcending the terms of the old insoluble debates, a basis for pragmatic accommodation might be found.
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 Union, the republics, or [any] parties.” Sakharov’s constitution eliminates the Supreme Soviet, and therefore also eliminates the position of its elected Chairman as head of Congress and head of the Union.
The draft retains the Council of Ministers. Its members, including the Chairman (Prime Minister), are appointed by the Congress. The President of the Union, elected by direct popular vote for a five-year term, is the head of state. He is the Commander in Chief of the armed forces, and represents the Union in foreign affairs. He has the “right of legislative initiative with respect to Union laws” and veto power “with respect to any laws and decisions adopted by fewer than 55 percent” of the Congress.
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 Union and inter-republican character” (but does not explicitly include interpreting the Constitution, or determining the constitutionality of legislation). The current Constitution does not provide for any such court at all, however. Thus we see that Sakharov was groping towards the rudiments of a tripartite government, with judicial review. But he did so more in terms of rejecting the old – seeking to avoid manifest errors from the past – than of embracing what American constitutional theorists would deem a wholly satisfactory new political compact.
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 Soviet Union, this subject should receive greater attention. Currently, the judiciary has no real power; indeed, the Presidium of the Supreme Soviet has interpreted its own prerogatives to include interpreting and enforcing the Constitution. Given that the Congress and the Supreme Soviet are often not in session, the Presidium is sometimes (in effect) both maker and interpreter of the law. This problem has caused difficult confrontations between the republics and the Central Government. Recently, for example, in response to republics passing their own laws on the rights of citizens with respect to voting and residency, the Presidium passed resolutions holding those laws unconstitutional. These resolutions were accompanied by orders to the republics to rescind those laws.
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 USSR laws and differs also from his draft constitution. In this style, the “freedom format,” the citizens tell their government what it may or may not do, not vice versa. In broadest terms, this style asserts that whatever is not explicitly prohibited to citizens, by the “limited” government of their creation, is permitted. This style’s alternative asserts that whatever is not explicitly permitted, is prohibited.
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.

Joshua RUBENSTEIN

A FEW THOUGHTS ON THE PROPOSED CONSTITUTION BY ANDREI SAKHAROV^[2]

At the behest of Mikhail Gorbachev, Andrei Sakharov began to formulate ideas for a new constitution for the Soviet Union in the final months of his life. It was the fall of 1989. By then, Sakharov had been back in Moscow for nearly three years following release from his illegally imposed exile in Gorky.
Sakharov had been impressed by Gorbachev when he first saw him speak on television and he was even more impressed by the palpable changes in Soviet life that he experienced in Moscow. His return to the capital in December 1986 was followed by a publicly declared policy that all political prisoners would soon be released. Glasnost in particular – which led to an unprecedented, almost unfathomable rush to print of works of literature and history that had long been suppressed – deeply affected Sakharov. As he wrote in his memoirs, “While we were still in Gorky, we began to notice astonishing changes in the press, the movies, and television.” And in Moscow, he confessed to a Western reporter that “I’m reading all the journals and magazines with great interest now... Every day we’re amazed because our standards and our points of reference are different. Total glasnost will come when we stop being astonished.”
Those years, 1986 to 1989, marked the beginning of a vivid period of Soviet history, when the country, under the leadership of the General Secretary of the Communist Party, seemed committed to genuine, democratic reform. The momentum lodged with the reformers, who controlled the levers of national power. And though this project was initiated “from above,” Sakharov recognized the possibilities connected to what Gorbachev was trying to do and he decided to support him even when other veteran human rights campaigners remained more skeptical. At the same time, Sakharov did not hesitate to challenge Gorbachev when he believed that the General Secretary was not going fast enough or far enough in his reform efforts. The most vivid example of Sakharov’s defiance under Gorbachev was his call to abolish Paragraph 6 of the Brezhnev Constitution that granted the Communist party sole authority over the country’s institutions.
It is in this context that Sakharov’s draft of a new constitution needs to be understood. Sakharov had always been one of a handful of human rights activists who not only campaigned for the release of individual prisoners of conscience but also tried to articulate a broader critique of the country’s problems and a broader set of policies for the country’s future. (Andrei Amalrik, Valentin Turchin, and, in his own way, Alexander Solzhenitsyn also advanced broad visions for reform of the Soviet Union based on their respective ideological or cultural assumptions. It is worth remembering Amalrik’s prophetic vision in particular, which he articulated as long ago as 1969, when he described the possible break-up of the Soviet Union as a result of a political crisis or a war with China. “Party officials among the various nationalities... will aim for national separateness,” hoping “to preserve their own privileged positions.”)
Sakharov wanted to avoid what Amalrik so presciently foresaw. Watching Gorbachev, Sakharov appreciated the effect of having a reform-minded leadership at the center, in Moscow, within a unified country. Perestroika exerted pressure for reform everywhere. At the same time, Sakharov was not a revolutionary. He always advocated gradualist options, wanting to avoid political or economic dislocations that would disorient or even harm large parts of the population. The Soviet people had already suffered more than enough from one grandiose experiment. He did not want to contribute to another. So he was against the break-up of the Soviet Union and hoped that a more flexible, federal system would be attractive enough politically to sustain the support of the country’s constituent republics. In this way, he wanted to provide a structure where human rights guarantees, which form one explicit foundation for his constitution, would mean applying the Universal Declaration of Human Rights throughout the country.
Contemporary life almost everywhere in the former Soviet Union confirms both Amalrik’s and Sakharov’s worst fears. With the exception of the now independent Baltic states and the hopeful possibilities that are now unfolding in Ukraine, the prospects for democracy in the former Soviet Union seem increasingly grim. And the predominant power – the Russian Federation – seems indifferent, if not hostile to democratic reform in its “near abroad.” The political situation in Central Asia, Belarus, and Russia itself reflect the failure of democratic institutions to emerge after the break-up of the Soviet Union. But unlike the heady days under Gorbachev, there is no longer a government at the “center” with the vision to promote democracy.

Дитрих БАЙРАУ

КОНСТИТУЦИОННЫЙ ПРОЕКТ САХАРОВА: ИДЕАЛЫ ПЕРЕСТРОЙКИ, ОТЛИТЫЕ В ПАРАГРАФАХ^[3]

В этой реплике мне бы хотелось поговорить о тексте проекта конституции как об историческом документе, который позволяет оценить культурный горизонт советского интеллектуала-диссидента и источники их политического мышления. Проект конституции исходит из возможности обновления Советского Cоюза на основе принципа истинного федерализма и политики разрядки в духе внутренних и внешних идеалов перестройки. Все это были идеалы, прежде всего, диссидентов либерального и демократического спектра. К ним относятся основные гражданские права (параграфы 5-11), соблюдение международных и национальных прав человека (параграф 4), отказ от агрессии и экспансии, запрет на применение атомного оружия, курс на разоружение (параграфы 13-14), требование соблюдения принципа разделения властей (параг-рафы 28-36) и не в последнюю очередь законодательное закрепление плюрализации форм экономической деятельности – равноправное сосуществование государственной, кооперативной и частной собственности (параграфы 37-45) с элементами демократизации производителей (параграф 44). Последнюю статью можно вполне интерпретировать как слабую попытку оживления демократии советов (в смысле демократии производителей) или как отголоски основных принципов “социальной демократии” в Центральной и Северной Европе.
Моральный пафос и наивная вера в благородство принципов ООН, а также в гармонию между (фиктивными) глобальными и отдельными государственными интересами, как это значится в параграфе 4, полностью соотносятся с духом скорее морального, нежели политического протеста диссидентской культуры. Кроме того, обращает на себя внимание то, что некоторые статьи имеют целью реформирование принципов и отдельных процессуальных правил советской конституции, неоднократно подвергавшихся критике.
Безусловно, сахаровский проект был направлен на устранение системных ошибок советской конституции согласно западным критериям. Особо следует отметить принцип разделения властей, отделения государственных функций от партийных и ограничение полномочий реформированных органов государственной безопасности. Несомненно это относится и к принципу “ведущей роли партии”, к внеподсудности партии и политических институтов и к злоупотреблениям властью НКВД и КГБ.
Обращает на себя внимание в тексте проекта скорее то, что в нем практически отсутствует выраженная связь с прошлым – например, в форме преамбулы, в которой бы подводилась черта под бесправием и террором в прошлом.
Я думаю, что проект конституции вполне мог бы стать моделью и примером для Российской Федерации, поскольку в нем гораздо четче, чем в действующей федеральной конституции, не говоря уже о практике, оговаривается ограничение компетенций и полномочий между мыслящимися как суверенные республиками и союзным центром. Даже если современные республики, такие как Татарстан, Башкортостан и др., не являются “суверенными”, остается неразрешенной проблема более четкого разграничения функциональных, правовых и финансовых компетенций и определения законодательных практик в спорных случаях. Вопрос о том, делегируют ли республики (и области) союзному центру или нынешней федерации только бюджетные, налоговые и финансовые прерогативы, является одновременно спорным в политическом и конституционно-правовом отношениях. Безусловно, есть множество вариантов его решения. Однако, эту проблему необходимо открыто обозначить, а не подменять демагогическими разговорами об “усилении вертикали власти”.
Очевидно, что США послужили примером для конструирования форм отношений между центром и республиками и учреждением конституционных органов. Таким образом, проект конституции имеет “этатистский” характер, в силу чего он не может быть применим для решения проблем межэтнического взаимодействия и этнических меньшинств. Поскольку эта проблема – за исключением пункта о возможной перекройке границ – никак не оговаривается, можно предположить, что Сахаров был убежден, что “решение” – как и в классических западных конституциях – лежит в законодательном закреплении основных естественных прав. Оговорим, что это легитимный, но не единственный подход – на Западе практикуются разные варианты гармонизации общих и обусловленных этнической спецификой прав (можно сослаться на пример Южного Тироля в Италии, Верхней Силезии в Польше или Боснии и Герцеговины).

Joanna REGULSKA

A VISION FOR A BETTER BUT CENTRALIZED UNION

Andrei D. Sakharov’s vision knew no limits; the human rights fighter, a true believer in the possibility of peace and disarmament across the world had completed, just before his sudden death, a draft of the Constitution of the Union of Soviet Republics of Europe and Asia. This bold document was submitted by Sakharov to the Constitutional Commission and although it wasn’t acted upon, its many visionary provisions did stimulate significant debates. No doubt the repealing of the infamous Paragraph 6 of the USSR Constitution and thus the collapse of the Communist Party monopoly and subsequent dissolution of the Soviet empire are direct outcomes of Sakharov’s tireless efforts to foster political change.
Like many drafts of new constitutions written in Central and Eastern Europe in the late 1980s and early 1990s, this draft also reflects a particular point in time: it is visionary and forward looking and yet also strongly embedded in the past.^[4] What makes this draft different from others is Sakharov’s commitment to global governance, an unusual approach in a document that usually serves national needs. Throughout decades of dissident activism, Sakharov became deeply committed to the struggle for freedom and security of humankind regardless of social, racial or ethnic markings; for him all citizens of the world do have a right to basic freedoms without consideration of age, sex, or health. Thus, in his draft he unveils an image of a peaceful and disarmed world, where the survival of humanity is the primary goal and where a convergence of socialism and capitalism could take place. Such visionary images, often difficult to achieve as reality has since shown, envisage a governance that goes beyond the powers of any one particular nation-state and even beyond the supranational forms such as the Union proposed in this document. Achieving fundamental transformations on the global level, he believed, would lead eventually to the establishment of a world government.
Parallel to his visions of the future was Sakharov’s concern with redressing the injustices of the past. Thus he puts especially strong emphasis on freedoms, such as the freedom of belief, action, mobility, choice and bodily integrity, and rights such as that to privacy. Yet, at the same time there are few specifics on how these will be guaranteed and on what rights individuals will have to secure these freedoms. Further, several provisions do speak directly to the need for redistributive justice that must take place in order for past violence, discrimination, and abuse of individuals and groups to be compensated. Thus Sakharov speaks at length about wages and employment, and access to education, housing, and medical care. These “aspirational rights” are usually considered more as measures protecting citizens’ welfare and as more appropriately belonging to a bill of social rights (which often is contained in a separate from the constitution document such as the European Social Charter (http://conventions.coe.int)); the exception here is the Constitution of the Czech Republic which contains one of the most detailed lists of fundamental social rights. Because the guarantee of such entitlements is often difficult to achieve, putting them into the constitution is in a sense problematic, yet the acknowledgement of these rights in the most significant document of any country reflects the political will to guarantee these rights. Although such prospective provisions are unique to the region of the former socialist bloc, their unquestionable visibility in the Sakharov’s draft not only speaks to the role that political ideologies and institutions have played in the past in constructing notions of citizenship, but also reflects the fear that such rights might again be lost.
As is typical, this draft does address the rights and obligations of different levels of government. Reflecting past experiences, but also believing that social justice needs institutional structures that can deliver and monitor it, Sakharov preserved in the document a strong role of the state. This will be of course a different, a redefined state, a state that is more concerned with the provision of welfare for its citizens then with the surveillance, interference, and control of their lives. But Sakharov is primarily concerned with central and regional governments only. This is not entirely unexpected if one looks at other federalist constitutions; indeed India’s is the only federal state constitution where local government provisions are explicitly addressed. In other cases, such as those of Germany or France, local government is only implicitly addressed, although it did gain a secure place in these documents. Yet, given that constitutions are seen also as political documents that attempt to provide for stability, legitimacy, and enhancement of national capacities for self-governance, elements that were clearly not present under the communist regime, the lack of attention to the local level in Sakharov’s draft is worth noticing, as it stands in contrast to the great majority of new and revised, after 1989, constitutions of Central and Eastern Europe.
The failure to present a framework for intergovernmental relations and to explicitly reinforce centralized or decentralized forms of government does de facto indicate that Sakharov felt more comfortable with a centralized form of governance. This tendency for centralization comes across when starting with Paragraph 15 Sakharov discusses the responsibilities that the regional level should undertake and the rights that republics will have. Nowhere in this discussion is their local level mentioned, and in fact, Paragraph 16 eliminates the possibility for the creation of lower level units. Neither is local autonomy discussed nor is decentralization of power and fiscal recourses provided for. Here one may speculate that the fear of ethnic conflicts and separatist movements prevented Sahkarov from taking a step forward and embracing local self-determination as he did at the level of the republic (Paragraph 15). Similarly, while citizens’ participation is called upon in several instances, as they are asked to voice their opinions through referenda and to express their will, citizens’ input is limited. So while they are given the right to decide which segments of their lives will be governed by the central level, there is no provision that would allow them to decide if these affairs should be run locally. Thus they have an option to decide what responsibilities should be moved upward, but could not shape lives in their immediate local communities (Paragraphs 17, 19). This tendency for centrali-zation and difficulties in conceptualizing decentralized central-local relations has in fact been common in the early stages of post-1989 regime changes. As Central and East European countries attempted to move past highly controlled practices, central institutions were also afraid to give away their power and resources as de facto it meant for many the end of their existence. Similarly, while Sakharov is committed to self-determination, for him it ends at the level of republic.
There are some other provisions where ambiguities can be noticed. Such is the case of Paragraph 20, where despite Sakharov’s commitment to peace he proposed, at the level of each republic, the establishment of military forces and other armed services. Or, in another instance, certain contradictions emerged when on the one hand he states that foreign policy will be the prerogative of the central level (Paragraph 19), and yet each republic will be able to establish direct international economic contacts (Paragraph 22). By opening access to international and global markets, republics will directly engage in shaping the context and application on the ground, in fact at the local level, of economic foreign policies and they will become agents of foreign policies.
Despite these points of contestation, Sakharovs’ constitution is a visionary and formidable document committed to the rule of law, social justice, equality among all, and respect for human rights and basic freedoms. It is also a document that not only illustrates the density of Sakharov’s thought and the search for a democratic and humanistic future for the entire world but also reflects late Soviet dissidents’ worldview. In that sense, the document is a memorial to the great historical moment of social and political transformations of the late 20th century that Sakharov so much helped to spearhead.

Kimitaka MATSUZATO

ETHNO-TERRITORIAL FEDERALISM AND A. D. SAKHAROV’S CONSTITUTIONAL DRAFT

It is often difficult for contemporaries to understand what is going on in front of them. This is also true for the foreign observers of an event. When Gorbachev’s economic reforms and their painful consequences were attracting worldwide attention, both the citizens of the USSR and foreign observers thought that the idea of reform was good, but that Gorbachev lacked the strong will to realize it in full or that he was encountering resistance by the nomenklatura. Several years after the collapse of the USSR, scholars began to argue convincingly that Gorbachev’s reforms themselves were destructive by their intention (to create a market economy without imposing adequate risks on enterprises) and implementation (voluntarism and leapfrogging changes in policies).^[5]
In contrast to Gorbachev’s hyper-reformism, Sakharov’s constitutional draft (for the expected Union of Republics of Europe and Asia) impresses us by its conservatism, if we read it as a guideline for state building. Yet it is another example of how difficult it is for contemporaries to understand the real reasons for the crises they face. The draft confirms the traditional idea of ethno-territorial federalism, which premises the coincidence of federal constituents (union republics and other administrative territorial units) and the spatial distribution of ethnicities (Paragraphs 17 and others). According to this approach, each federal constituent has its titular nation, the members of which are more or less privileged in “their” republic.^[6] Remember that almost all the republics in the USSR, both union and autonomous, were named for some titular nation.^[7]
The Russian Empire was built on a purely territorial principle. To be more precise, the Russian empire tried hard to avoid overlapping the administrative territorial boundaries with the ethnic distribution of the population. Imperial officials thought that ethnically homogeneous regions would provoke separatism among the population and make inter-ethnic relations more complex (a compromise between a population distribution of 90 percent and 10 percent is often more difficult to achieve than that between 60 percent and 40 percent). There were few exceptions to this principle: for example, the introduction of Kovno (Kaunas) Province in the 1840s and the Steppe Governor-Generalship in the 1880s. However, both of them had limited, concrete purposes: the former was planned to sever Lowland Lithuanians (Žemaitis) from the influence of Poles and Polonized Highland Lithuanians.^[8] The latter was introduced to tackle deteriorating Russo-Chinese relations.^[9] Recent studies pay attention to the fact that even in bureaucratic circles there were projects to make administrative boundaries closer to ethnic ones,^[10] but we should not ignore the fact that these projects had a personal element. Autonomist claims following the 1905 Revolution came from the anti-government camps.
As is well known, Lenin and the Bolsheviks proposed the idea of national territorial autonomy before the Revolution of 1917, and debated the principle of cultural autonomy (individual, non-territorial solution of national problems) with the Austrian Marxists. At that time, however, the Bolsheviks intended nothing more than to use nationalist movements for revolutionary purposes. Astonished by the nationalist claims in the former territories of the Russian Empire during 1917-1921, and the unexpectedly easy collapse of the Habsburg Empire, the Bolsheviks began to think that it would be better to give the population groups national territorial autonomies, political institutions, the chance to raise national elites, and literal languages from above, rather than to agree unwillingly with nationalist claims from below.^[11] This was the turning point from the purely territorial to the ethno-territorial principle of state building, which would later be universalized over the socialist countries. The state and Communist Party defined the categories of nations and ethnicities and ranked them. According to this ranking, newly defined nations and ethnicities were vested with various levels of autonomy, budgets, national historiographies, and possibilities for language and ethno-cultural education. Sakharov’s constitution is absolutely unconscious of the problems of this Leninist mechanism of ethno-territorial self-definition, and as a result, brings these problems to the extreme.For example, having experienced numerous bloody events in the former socialist territories, one may easily imagine the possible consequences of Paragraph 26 on changes of territorial borders between union republics “according to the population’s will.” Moreover, the draft includes an overtly primordial paragraph (38) declaring that the land belongs to the “nations” living in the republic (the paragraph, no doubt, bears in mind titular nations, though the plural noun, “nations,” is used).^[12]
Obviously, Sakharov and other Soviet democrats did not recognize that ethno-territorial federalism was a specific version of federalism, deriving from Lenin. They assumed that the inter-ethnic and inter-republican conflicts at that time were caused by distortions of some ideal; ethno-territorial federalism. They believed that if an ethno-territorial federation was created on democratic and voluntary principles, it would guarantee the stable and peaceful functioning of the state. As a matter of fact, the successful functioning of ethno-territorial federalism (for example, in Belgium) has been an exception in modern history. More often, it has turned out to be a prelude to the peaceful (the Habsburg and Czechoslovakian cases) or bloody (the Yugoslavian and, possibly, Indonesian case) split of “federal” states. Ethno-territorial federalism is centrifugal by its nature. If the USSR and Yugoslavia were able to exist for a relatively long time, it was because in these countries the Communist Party (or Union) functioned as the provider of the definitions of nations and the oppressor of national separatism. When this condition was lost, the idea of ethno-territorial federalism turned out to be a theoretical basis to justify regional conflicts.
The Leninist principle of ethno-territorial federalism, which had actually been progressive until a certain stage of Soviet history, completely discredited itself by the experiences in the former USSR and Yugoslavia and today faces powerful external and internal criticisms. The external criticism comes from the EU. Having been committed to the tragedy of the former Yugoslavia and suffering from its own separatisms in the Basque region, Northern Ireland, etc., the EU is not ready to have additional reasons for headache. Therefore, the EU advises the former socialist countries to build the state purely territorially and regulate minority issues by affirmative action targeted at individual members of ethnic minorities. For example, the EU has been quite critical against the request for territorial autonomy raised by the Hungarian minority in Romanian Transylvania. Internal criticism of ethno-territorial federalism derives from Russian President Putin. Many political scientists have predicted that a more fundamental federal reform will follow the already proposed one (the introduction of an almost appointment system of governors and republican presidents). They mean the amalgamation of regions and republics. If a gigantic region, for example, of “Mid-Volga” is formed, national republics such as Tatarstan, Bashkortostan, Chuvash, and Marii-El and Russian oblasts such as Samara and Ulyanovsk, will be incorporated into it. Inevitably, the enlarged region will not have any titular nation. Thus the enlargement of regions will imply the rejection of the Leninist principle of ethno-territorial federalism.
It seems paradoxical but unsurprising that both actors intending to restore security in the Eurasian continent (the EU and the Putin administration) by renewing one or another kind of imperial order propose to forsake ethno-territorial federalism and recommend a purely territorial method of state building, which reminds us of the one once adopted by the Russian Empire.
Because of space limitations, I cannot analyze another democratic stereotype at that time, namely the introduction of semi-presidentialism with the preservation of an omnipotent Assembly (s”ezd narodnykh deputatov). A clear proposal for semi-presidentialism (Paragraph 35), Sakharov’s constitution was more advanced than the introduction of the post of the President elected by the parliament by Gorbachev. Nevertheless, Sakharov’s constitution contains no provisions to regulate relations between the branches of power. For example, it is unclear what to do if the parliament rejects the candidate for prime minister proposed by the president. Therefore, if Sakharov’s constitution had been adopted, what took place in Russia during 1992-93 would have taken place in the “Union of Europe and Asia” in almost the same manner. It seems useless to expect the then Soviet democrats to understand that in democracy, mechanism and management often matter more than goodwill and enthusiasm. As a whole, Sakharov’s constitutional draft reveals that the institutional disease from which the Soviet state was suffering had almost nothing to do with the public debate and dominant democratic discourse at the time.