Rule of Law in USSR: A 180-Degree Turn? Gorbachev pushes concept once deemed `bourgeois'. SOVIET REFORM
WHEN Mikhail Gorbachev started to call in public for ``the rule of law,'' Soviet legal specialists pricked up their ears. To most people it was just another piece of jargon. To Soviet lawyers, it was a clear hint of a potential revolution in the legal system. If actually carried out, the impact of the ``rule of law'' would have effects far beyond improvements in Moscow's human rights record that are being described at the current Vienna Conference on Cooperation and Security in Europe as a ``breakthrough.'' (Related story, Page 2.)
The rule of law would also destroy the legal foundations of authoritarianism in the Soviet Union, and it would sharply limit the powers of the Communist Party.
Mr. Gorbachev is well aware of the implications of his words. He and Anatoly Lukyanov, the Soviet Vice-President and his close aide, both graduated in law from Moscow State University in the mid-1950s. They know that the term they are now using had for years been dismissed and denounced as bourgeois and Western, totally unacceptable in the Soviet system.
Gorbachev apparently began to refer to the idea of rule of law in mid-1988, legal observers here say. Exactly what form that might take is not clear. But the fundamental ideas would stand the present legal system on its head, Soviet specialists say. These ideas include: independence of the judiciary, subordination of government to the law, and emphasis on the freedom of the individual, rather than the individual's obligations to the state. None of these currently exist here, the sources say.
Rule of law cannot exist in the Soviet Union under present political conditions, attorney Leonid Mamut told the government daily Izvestia recently. ``For the last seven decades, the highest power has been in the hands of a structure outside the state - the Communist Party, or rather its apparatus.'' In the Soviet Union, another lawyer says, the concept of the state has too often been confused with raw power.
Other specialists illustrate the consequences of this. Oleg Temushkin of the Supreme Court recalled, in the same Izvestiya article, being ``an involuntary witness'' of an incident where former Politburo member Geidar Aliyev pressed hard and successfully to have two men shot for corruption. Arkady Vaksberg, a specialist on legal affairs claimed in an article in the magazine Literaturnya Gazeta last year that one of the men had been framed because he was investigating high-level corruption too actively. Mr. Aliyev was dropped from the Politburo, ostensibly on grounds of ill health, in October 1987. Mr. Vaksberg says that since the article was published, Aliyev has lobbied him, unsuccessfully, to retract it. Aliyev now lives quietly in retirement.
In a discussion in a small law review at the end of last year, a group of lawyers discussed party and government interference in the drafting of laws. Many laws were ``stupid,'' complained Oleg Kutafin of the Institute of State and Law. Even worse, he added, ``we wrote them.'' But, several of his colleagues added, after specialists write the laws ``a mysterious someone, always unidentified, rewrites them.''
Commenting in the Izvestiya round-table on the role of the individual in a reformed legal system, Valery Savitsky of the Institute of State and Law made a statement that could have caused him considerable discomfort only a few years ago. In the event of a conflict between an individual and the state, Mr. Savitsky asserted, ``one should show preference to the individual.'' (In a recent law journal discussion, Mr. Savitsky recalls trying in 1976 to write an article about the rule of law and being denounced for using ``bourgeois'' concepts.)
Comments like these on the freedom of the individual run directly counter to the established views routinely expressed even a few months ago.
The more traditional concept was that the Soviet citizen's rights were limited by a number of factors - particularly state security. As late as 1987, government resolutions were introduced tightening and extending the protection of state and official secrets. And writing last May in the journal ``State and Law,'' Nikolay Radlugin commented with apparent approval that the 1978 Law on Citizenship made such questions as the right to abandon - or be stripped of - Soviet citizenship dependent on the needs of state security. In his article, a discussion of a new law on state security (due to be published in 1990), Mr. Raldugin tended toward tighter definition of the individual's responsibility toward the state.
But, as with many other aspects of reform in the Soviet Union, the debate has produced little tangible change so far. Supporters of the idea admit that the task of transforming theory into practice will be slow, difficult and resisted at every step of the way.
Fundamental pieces of legislation are under preparation. These include a new criminal code, which may possibly abolish the articles on anti-Soviet activity that have been widely used against dissidents; and a separate piece of legislation on criminal procedure that specialists like Mr. Vaksberg consider to be vital to legal reform.
The draft version of ``the basics'' of a new criminal code was published late last month. Mr. Vaksberg is guardedly positive in his assessment of the new document. It certainly is not a turn for the worse, he says.
But Vaksberg points to a fundamental concern that, in the view of many reformers, may eventually cancel out all the good intentions of changes in law.
Nobody knows for certain who wrote the legislation, and how they decided on the approach adopted. So far, Vaksberg says, ``I only know from rumors how it is being put together.''