Human Rights Workshop
Davis Center for Russian and Eurasian Studies
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
Now to the subject of my presentation, the current human rights situation in
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
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.
Finally, the third thing that happened in
So where does that leave us with respect to
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
" … [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
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
Unfortunately, I cannot say that
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
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
Thank you for your attention.
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