Human Rights Workshop

Davis Center for Russian and Eurasian Studies

Harvard University

January 29, 2005

Remarks by Lowry Wyman

First a few words about the Jurlandia Institute: Since 1990-1991, when my husband Barnabas Johnson and I — at the behest of the Government of Lithuania — drafted a model constitution to facilitate Lithuania's return to independence, we have been engaged in what we call the Conversation of Democracy, using the Internet to stimulate research and publishing in this field. The official "home" of our enterprise is the Jurlandia Institute, whose current website is: www.jurlandia.org.

Barnabas and I are working on different aspects of this Conversation. What is currently posted to the website, for the most part, is his creation — the beginnings of an "encyclopedia of constitutional democracy", organized as a "hologram of information", which can be viewed and accessed from many points and perspectives. I will soon post papers and articles I have written over the years; these provide an American sovietologist/lawyer's perspective on efforts to develop and promote the rule of law in the former Soviet Union. I am also working on something called the Rule of Law Index. Don't ask me now to say what it is. Indulge me: look at the website from time to time to see what I have put there; monitor and comment on my progress. My creation, too, will benefit from ongoing feedback. [At this point, I engaged the audience in 30 minutes of discussion, clarifying various issues addressed in my Rule of Law Index questionnaire. Several promised to answer the questionnaire in its entirety and to send me their answers.]

Now to the subject of my presentation, the current human rights situation in Russia:

One of the points that Barnabas and I make over and over is that nothing that has a history can be defined, that is, described or proscribed with finality. This is especially true where the subject is law and human rights. If we are to understand "human rights", we must look at the history and context in which these rights were first created and then follow their development over time. Their meaning, although real, is not static.

By contrast, other people, for example, take the text of the U.S. Constitution, and parse its language from the document itself, imbuing the words with "original intent". In my view, this kind of analysis is a bit like taking the Bible and saying its words are the Word of God. I think this way of proceeding is wrong (in both a legal and a moral sense) and, therefore, unproductive. Perhaps if I had been raised in a particular religion I would think differently, but I don't. I can't. Forgive me if by saying this I insult anyone.

Hence, such fundamental rights as "equal protection of the law" and "due process of law" must be understood with reference to their history, and, in particular, with reference to the English context in which they were first developed. If you wish to "define", in the sense of "note" the first articulation of the concept of due process of law, you need to look at the Magna Carta of 1215. You won't find the exact words "due process of law", but you will find the concept from which this phrase emanates — and has been developing over time.

Which brings me to another important point: when looking at a country's particular human rights record or current human rights situation, it is crucial to determine a/ whether that country's concept of human rights is, so to say, of a piece, that is, part of an organic whole of law that binds everyone, including the governors as well as the governed, and b/ the extent to which that country's human rights traditions are homegrown or are imported and grafted onto a system that might not be an organic system of law at all, but merely a jumble of edicts, decrees, and regulations that fail to give either the Law-Maker or the citizen sufficient comfort that the law proceeds from some foundational rules, in other words, "commandments" that have meaning and coherence when taken as an organic whole.

Which brings me to the handout that I will now pass around the room: in my view, no discussion about the status of human rights in Russia can be meaningfully addressed without paying attention to these Ten Principles Governing Law and Law-Making. Too often, when people attempt to assess the state of human rights in a given country, they skip over these fundamental principles. I submit that if we apply these fundamentals to Russia, we'll achieve fairly quickly a rather accurate sense of the state of human rights there. [Here I paused to run down the 10 principles discussed in that article, which can be found on our Jurlandia website.]

Now, why am I talking so much about concepts, history, context, principles, and so on — apparently abstract ideas — rather than about specific cases, specific incidences of breaches of human rights that we are right to criticize and struggle against, and which sometimes inspire us to take to the streets to demonstrate our outrage? Because, I submit, until we apply this kind of analysis to Russia we will continue to be unsuccessful in getting to the heart of what is wrong with the state of human rights in Russia, and what, thankfully, is beginning to appear to be going right in Ukraine.

As I was following events unfolding in Ukraine, I was looking for some very specific things: I wanted to note where everyone, the governors and the governed, agreed, because without agreement about what the law means and how it should be applied, it is impossible to protect human rights on an ongoing basis. Well, the first thing that everyone apparently agreed on at crunch time was that there would be no bloodshed — that whatever was decided, had to be decided without a crackdown: the governors and the governed agreed that they were all bound by self-restraint and peaceful adherence to whatever process they chose out of their crisis. Next, the governors and the governed agreed that the crux of the crisis was a legal problem, not a political one. This was absolutely key: as the crisis entailed a legal problem, they recognized that its solution, provided it was rationally based, clearly articulated, and published, and, considering the fact that the law bound everyone, the "solution" would be equitably applied, and accepted voluntarily. Hence, peace — a key objective of government by the rule of law — would be upheld and maintained.

In the United States, many people take for granted that police officer and peace officer are one and the same person. Not so in Russia (or, until now, in Ukraine). Of course, I realize we can't take this concept entirely for granted in the United States. I just say here that many people take it for granted because they have been raised with the notion that maintenance of the peace and policing go hand in hand — as peaceful resolution of our differences is crucial to the rule of law.

Finally, the third thing that happened in Ukraine was that the people — the governors and the governed — took their time to argue all the sides of the problem in an open way, and … without fear. This is very important. People who cannot freely debate what to do and then reach a conclusion as to what to do/enact for the country as a whole … people who cannot act/create law without fear of reprisal cannot hope to establish human rights as core legal values.

So where does that leave us with respect to Russia? Well, no matter what the Constitution, the laws, or the Law-Makers say in Russia, I never fail to observe that, at crunch time, political considerations outweigh the legal ones, and that force from the top (the kind tsar, the bad party boss, the iron fist, the paternalistic state, I could go on and on here) is what moves people to "obey" as "subjects" rather than as citizens. There is no concerted effort on the part of the government (or the people, for that matter) to insist on maintaining the peace according to standards and principles that everyone can understand and feel responsible for. At best, from time to time in Russian history we have had "refrom" – usually in the form of importation of ideas from abroad, with the importation occurring as an experiment that unfortunately fails, only to be followed by crack-downs to bring back "order" out of the chaos, incoherence, and ineffectiveness of the experiment called "reform".

I would like now to refer you to some remarks I made approximately 16 years ago to an audience of some 200 invited guests, including the Procurator General of the USSR, at Spaso House, the American Ambassador's residence in Moscow. The topic of my lecture at that time was "Glasnost' and the Reform of the Soviet Criminal Justice System". I made a number of points, but one had to do with elections. In light of the recent Ukrainian experience, I thought it was worth noting what I said about the Law on the Election to the Congress of People's Deputies:

" … [it] is turgid and extremely confusing, does not give any real power to the courts to decide questions that are in dispute, which should have happened if there was going to be a serious attempt at involving the judiciary in the resolution of legal issues."

I can only hope that when legal disputes arise over the proper application of this law, the Soviet drafters will revise it and provide for full judicial review, up to the Supreme Court of the USSR, of any dispute affecting the rights of the voters, so that standards for interpreting the law can be developed and impartially implemented. The right to vote is one of the most important civil rights, and to leave resolution of disputes to the Electoral Commissions or the People's Court is to keep bias and corruption an integral part of the new voting system."

I understand that President Putin is planning to remove the current constitutional right of the people to elect their own governors at the regional level. In a seminar recently held at the Davis Center where a judge from Russia's Constitutional Court offered Putin's "practical" rationale for doing this, he didn't say a word about whether there might be a "legal" — in the sense of due-process-of-law — problem.

Why do I say there is a due-process-of-law problem? And why aren't the Russians complaining about that? Why aren't the Russians insisting that their right to due process of law is ignored, that due process of law is a fundamental right that their government is obliged to observe?

So where are we? Well, in the time remaining, I'd like to look back into history, to a time shortly after Russia enacted her so-called Great Reforms (in 1864). The Jews in Russia, having always been treated with even less respect than the Russians, sought for several years to achieve equal protection of the law, by appealing to the Tsar's sense that discrimination was something that should be eliminated. They didn't bother trying to achieve due process of law, because regardless of their plight, they were dependent on the tsar's enlightened response. In other words, the Tsar did not feel any obligation to be bound  — in the Magna Carta sense — by anything he decided. At best, on the day that he decreed what the law was, the Jews hoped that he would see to it that the law was not worse for them. In this regard, I would like to recommend Benjamin Nathans' book "Beyond the Pale". By assessing the impact of the Great Reforms from the perspective of how they affected a discrete group of people that had always been forced to live in fear of reprisal or arbitrariness, he amply demonstrates how underdeveloped Russian legal consciousness was at that time.

Unfortunately, I cannot say that Russia's legal consciousness has progressed much beyond that era, if at all. Moreover, when I listen to arguments made by people with experience in the human rights field, I still hear complaints that they need help from abroad – that they cannot deal with their oppressive government on their own. They also complain that what help they have received from abroad was ineffective (which, in fact, it was). Well, how can they get effective help if they do not formulate for themselves the fundamental precepts by which they must all be governed?

The people still express a we-they (they being the authorities) attitude, as if somehow, the people don't have any responsibility for the kind of authorities, that is, governors, they have. Now I realize this is not a simple matter of waking up one day and saying, okay, let's have accountable government. But, at some point, beyond complaining over and over about the outrages perpetrated by the government, the people must demand a solution — have their Magna Carta moment — and insist on binding their governors.

I hope this year will see some movement in this direction in Russia. The best hope, in my view, lies with the old people — the ones who took to the streets, absolutely outraged at Putin's decision to take away their subsidies. Now, how can their outrage be turned into action focused on the creation of the rule of law in Russia? Perhaps Ukraine has lit a candle that will become a beacon for Russia's legal future.

In closing, I would say that something I wrote up for USAID when working in Ukraine in 1998 might be useful: "Clearly our aim/USAID's aim is to help good governments, not dictatorial ones, and where it is not yet clear what kind of government we're dealing with, our aim is to facilitate the creation of a good government over a bad/dictatorial government. Accordingly, when we are told that our mission is to help the Government of Ukraine, we must ask to do what?

Answer: we want to help the government to BECOME A GOOD GOVERNMENT, that is:

Become a government that is responsive to the people

Become a government that is accountable to the people

Become a government that has the confidence of the people

Become a government that is not perceived as the enemy of the people

Become a government that is perceived as comprised of just people, trying to do a proper job for the people

Become a government that is, in fact, advancing the common good — the good of the people.

In sum, Become a government of the people, for the people, guided/commanded by the people.

How do we get there?

Every time this question comes up, we need to ask ourselves: are we making sure that we (Westerners and Russians alike) are helping the Government of the Russian Federation to become a Good Government?

Thank you for your attention.

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