Russian Court Favors Hard-Liners, Weakening Moves to Rule of Law

THE office is an oasis of serenity. A massive desk in the corner is piled high with papers. And sitting behind that desk with a benevolent, academic look on his face is Nikolai Vitruk, who hardly seems like a man in the middle of the political brawl over Russia's destiny.

Mr. Vitruk, a justice on Russia's Constitutional Court, is not eager to acknowledge the court's prominent role in the power struggle between President Boris Yeltsin and his parliamentary foes. He begins an interview with the Monitor by recounting unheralded opinions on citizens' rights, such as a decision prohibiting age discrimination in the workplace.

"We've been undoing the practices of totalitarianism, where the state was always above the people," Vitruk says, referring to the Soviet system.

Such decisions, however, have been virtually ignored during Russia's political battle, Vitruk says. Indeed, although it is supposed to be an impartial arbiter of the power struggle, the court has been perhaps irreversibly politicized. And its inability to remain outside politics is raising doubts about the institution's viability, as well as Russia's attempt to become a law-governed state.

"If there is further politicization of the court's activity, it will basically signal its death," Vitruk says.

The court was expected to rule today on an appeal by President Yeltsin to declare unconstitutional the voting rules for the crucial April 25 referendum. The poll is essentially a vote of confidence in Yeltsin and his progressive economic policies.

Under rules established by his parliamentary opponents, Yeltsin must gain a "yes" vote from a majority of all registered voters in Russia, not just those who turn out to cast ballots. Such a requirement makes it practically impossible for Yeltsin to gain a favorable result. He wants the referendum decided by a majority of actual voters.

No matter how the court rules, Yeltsin has announced he will not abide by the parliament's voting rules. This suggests Yeltsin has little faith in the impartiality of the court, which has consistently ruled against him in recent months, including the decision against his attempt to introduce "special rule" last month.

Court Chairman Valery Zorkin, the leader of the court's conservative faction, already has hinted the ruling will go against Yeltsin.

When the court was created in 1991, it was never intended that it would have a high-profile political role, says Sergei Pashin, head of the Judicial Reform Department at the State Legal Agency, and author of the law establishing the Constitutional Court.

But shortly after coming into being, the Zorkin-led court sought to expand its jurisdiction into politics, Mr. Pashin says. At its own initiative, the court engineered the adoption of a constitutional change - Article 165 - enhancing its ability to rule on political cases, he says.

"Justices were nominated by political factions [in parliament] with the aim of establishing a political balance on the court," Pashin says.

"It was a mistake to elect the Constitutional Court before adopting a new constitution," he says, adding that the court's "active expansion" of power violates the law.

Mr. Zorkin, meanwhile, dismisses claims that the current Constitution is a "Brezhnev," or communist, document. The basic law, promulgated in 1978, enshrines human rights and outlines the division of powers, he asserts. Adopting a new constitution, he says, could aggravate the political conflict, possibly causing civil war.

Of the 13 justices, a solid majority of nine back Zorkin's positions, says Vitruk, one of three liberals. One justice is incapacitated by illness. Zorkin says the court sometimes resembles "13 angry men," a reference to the American film, "Twelve Angry Men," a drama about a jury's deliberations.

Vitruk expresses concern that the majority is becoming monolithic and incapable of rendering a balanced decision.

The court's politicization will not just affect rulings on pre-referendum issues, but also could play a large role in interpreting the April 25 vote. Based on Zorkin's comments, the court is clearly siding with the legislative branch's go-slow approach to reforms and against the progressive-minded executive authority.

To a certain extent the struggle surrounding the court is a continuation of a battle - interrupted by the more than 70 years of Soviet totalitarianism - fought between reformers and authoritarian-leaning officials during the twilight of the Czarist era.

Russia's first experiment with becoming a rule-of-law state began in 1864, when Czar Alexander II introduced sweeping judicial reforms, including jury trials. These reforms, however, met fierce resistance from the conservative Czarist bureaucracy, which saw them as a threat to the existing order.

In the early 20th century, with Russia's restless population wanting more rights, ultra-conservatives convinced then-Czar Nicholas II that only repression, not rule of law, could save the Romanov dynasty. The end result was the Bolshevik coup of 1917.

Now, in the face of renewed attempts to introduce a rule-of-law system, many in the Russian parliament are seeking to remake Russia according to "traditional values," including a strong central government. At the same time they treat Western political and economic traditions with suspicion.

"One can perceive the conflict between supporters of a `police state' and those of rule of law as it was 75 years ago," says historian Victor Bezotosny.

"But our political process being extremely personified, we should not view Mr. Yeltsin as a staunch champion of rule of law," Mr. Bezotosny continues. "If he had lost presidential elections in 1991, he would have probably conducted the same policy that [parliament Chairman Ruslan] Khasbulatov is now pursuing and would used the parliament as his power base."

Yeltsin was the chairman of the Russian parliament before assuming the presidency.

Depoliticizing the court is still possible, Vitruk insists, by eliminating ambiguities in existing laws. Meanwhile, Pashin says, the justices control the court's fate.

"If the justices perceive themselves as judges, then there is a chance for development," Pashin says.

"If they define themselves as the saviors of the Motherland and as politicians - they have no chance."