Legal History and Comparative Law

Essays in Honour of Albert Kilralfy

Richard Plender

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781135185855
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

First Published in 1990. Albert Kiralfy entered King's College London as a student in the Faculty of Laws in 1932, graduated in 1935 and took his first higher degree in the following year. Apart from War Service (1939-45), he was a teaching member of the Faculty from 1937 until 1981 when, on his nominal retirement, the University of London conferred on him the title of Professor Emeritus. Professor Kiralfy's contribution to legal literature, continuing to this day, may be said to have begun almost immediately after graduation, with special interest in comparative law, property law and law history.

The Soviet Constitutional Reforms of December 1 1988: an Analysis of the Changes from Draft to Law

JANE HENDERSON*

I Introduction

When Mikhail Gorbachev presented the final version of the reforms to chapter 12 and onwards of the 1977 USSR Constitution to the USSR Supreme Soviet on November 29 1988, he noted that there were a number of corrections which had been made to the draft law. He explained that many changes had been necessary as a result of the fact that

…some of the provisions in the draft laws were not formulated very precisely and drew a good many critical comments during the discussion.¹

However, not all the amendments to the draft were to correct mere slips of the draftsperson’s pen. Some evidenced a certain amount of rethinking.

The aim of this paper is to analyse these changes made to the draft constitutional reform before its final enactment as law on December 1st, 1988, by the extraordinary 12th session of the 11th Supreme Soviet of the USSR, to see what light this throws, if any, on Soviet constitutional processes.²

Attitude to the Constitution

The role of a constitution in a socialist state has been the subject of a good deal of previous study and speculation.³ However, without going into detail which the reader can find elsewhere, two main points should be noted with respect to the Soviet Constitution.

Firstly, in the past at least, the constitution was regarded as much as a “blueprint for reform” and a “marker of achievement” as it was a prescriptive normative document. This meant that the question of direct enforceability was always a potential problem. It also meant that the attitude to constitutional provisions might not be as rigorous as they might be under, say, the Western continental traditions. Going into the past we may note, for example, Vyshinsky’s famous aphorism about changing the law and then reforming the constitution to bring it in line afterwards.

Secondly, at the present time the attitude to the constitution and its role seems to be changing. Since the 19th Party Conference, the urge to set up a “rule-of-law state” has been running strongly. One aspect of the reforms is to set up a Constitutional Supervision Committee, and it seems possible at least that the attitude to “constitutional rights” may well harden, and the assertion of those rights become more vociferous under the new restructured state. Certainly recent experience in the Baltic republics would suggest that this might well be the case as regards the delicate balance between the union republics and the USSR as a whole.

It is important to note these two points at the outset to beware bringing to our study of the Soviet Constitution pre-existing prejudices. At the moment in the Soviet Union a number of new attitudes are being formulated. The extent to which these echo previous Soviet, or even Russian views, and the extent to which they parallel particular Western traditions has not yet become clear. Indeed, the clearest thing to emerge so far is probably the fact that there may be, for the first time in some while, a real diversity of views being expressed. We should be warned to take a fairly flexible approach to what is presented and not take up a judgemental stance based on our own preconceptions and expectations about the Soviet legal system and its constitution.

This is, in effect the standard warning that has to be given for any comparative law exercise: it is perhaps a little more pointed with respect to Soviet law because of historical and ideological factors. However, armed with this basic caveat we should be able to approach the present study with an enquiring mind and come out at the end with a little more insight into the present stage of Soviet legal development.

A Summary of the Constitutional Reforms

Before going on to look in detail at the changes which were made to the draft law, a few words must be said about the overall structural changes which the new constitutional provisions have brought. These have received a good deal of publicity in the press and will no doubt be well covered in further academic publications. However, for the benefit of the present readership it is useful to outline the most salient points in order to give the context to the following discussion.

The major change which the perestroika of the constitution has introduced is the establishment, for the first time, of Congresses of People’s Deputies at USSR, union-republic, and autonomous republic levels (arts. 89,108,137 & 143 respectively).

People’s deputies are elected to the congresses for five years by direct suffrage, but the constituencies which elect them are of two different types: on the one hand people’s deputies are elected from electoral districts, and on the other they are elected by “social organisations”. As under the previous constitutional provisions, the electoral districts are also of two types. This leaves us with, at the USSR level, a Congress of People’s Deputies which, according to art. 109

…shall consist of 2250 deputies, who shall be elected as follows:

750 deputies: from territorial electoral districts with an equal number of the populace;

750 deputies: from nationality-territorial electoral districts according to the norm of 32 deputies from each union republic, 11 deputies from each autonomous republic, 5 deputies from each autonomous region, and one deputy from each autonomous national area;

750 deputies: from all-union social organisations according to the norms established by the Law on Elections of People’s Deputies of the USSR.

The latter law was passed at the same time as the constitutional reforms.

A Congress of People’s Deputies (CPD) having been elected by direct suffrage, that congress itself then elects a Supreme Soviet (at USSR and at union and autonomous republic levels). The USSR CPD also elects inter alia a “Chairman of the Supreme Soviet”, who has a number of executive powers in his own right (set out in art. 121 of the constitution). The USSR Supreme Soviet also appoints a Chairman of the Council of Ministers, who in turn recommends the individual ministers who will form the Council of Ministers. The composition of the Council of Ministers is then confirmed by the Supreme Soviet.

The other main body which assists in the government of the country is the Presidium of the Supreme Soviet. Under the previous state structure, a lot of day-to-day power lay in the hands of the Presidium, by virtue of the fact that it used to be the

…permanently functioning organ of the Supreme Soviet of the USSR, accountable to it for all its activity, and exercising the functions of the highest organ of state power of the USSR in the interim between its sessions, within the limits prescribed by the Constitution (pre-reform art. 119)

When the Supreme Soviet itself only sat in practice for two sessions per year of three days each, this left a lot of time when the Presidium was “exercising the functions of the highest organ of state power”.

However, the duration of Supreme Soviet sessions under the reformed structure is much longer. New art. 112 specifies that the Supreme Soviet shall be convoked for

… regular - spring and autumn - sessions of, as a rule, three to four months duration each.

The people’s deputies elected onto the Supreme Soviet from the CPD will be the nearest thing the Soviet Union has had to professional politicians, since their “expenses” will be covered by the state whilst they are

…relieved from fulfilling production or employment duties (art. 104)

By thus having a more or less permanent Supreme Soviet, the role of the Presidium has been drastically changed. It also seems that the membership of the new Presidium is composed very differently as well. Under the old structure, the membership of the Presidium was

…elected from among the deputies and shall consist of a chairman …, first deputy chairman, fifteen deputy chairmen - one from each union republic, the secretary of the Presidium, and twenty-one members… (oldart. 120)

Now the membership of the Presidium is defined as being

…ex officio of the Chairman of the USSR Supreme Soviet, the first deputy chairman of the USSR Supreme Soviet, fifteen deputy chairmen who are the chairmen of the union republic supreme soviets, the chairmen of the Soviet of the Union and the Soviet of Nationalities [the two chambers of the USSR Supreme Soviet], the chairman of the USSR People’s Control Committee, the chairmen of the permanent commissions of chambers and committees of the USSR Supreme Soviet, (art. 118)

There is no provision in the constitution for other than these ex officio members. How this collection of chairmen and deputy chairmen will interact, and what their governmental input will be is but one of the fascinating fields of enquiry which the constitutional reforms have generated.

II The Background to the Constitutional Reforms - the Sequence of Events

The Party Conference

A convenient starting point for considering the current reforms to the USSR constitution is the 19th Party Conference which began in Moscow on Tuesday 28th June 1988. This was conducted on the basis of a series of discussions on a set of ten Theses, which had been approved by a plenary meeting of the CPSU Central Committee. According to the Theses, the agenda of the Conference

…is as follows:

1)progress in implementing the decisions of the 27th Party Congress, the main results of the first half of the 12th Five-Year Plan period and the tasks of Party organizations in deepening the process of perestroika;

2)measures to further democratize the life of the Party and society.⁴

It is the second item on this agenda which concerns us. One of the important aspects of it was set out in the final section which specified that

…Several questions will require amendments to the constitution and legislation, and some new decisions at a level of a Party congress.⁵

The resolutions actually passed by the Party Conference continued the momentum towards constitutional change. In the newspaper reports the text of the conference resolutions firstly emphasized the importance of the current developments:

The 19th All-Union Party Conference, having discussed the report delivered by M.S. Gorbachev, General Secretary of the CPSU Central Committee, “On Progress in the Implementation of the Decisions of the 27th Party Congress and the Tasks of Deepening Restructuring”, …states that the strategic course worked out by the Party at the April (1985) plenary session of the CPSU Central Committee and the 27th Party Congress, a course aimed at the comprehensive and revolutionary renewal of Soviet society and the acceleration of its social and economic development, is being steadfastly implemented.

…Democratization and openness have fundamentally changed the ideological, political and social character…

All this indicates that restructuring needs further deepening and reliable guarantees of its irreversibility. The conference emphasises that restructuring is the only possible path for the strengthening and development of socialism…⁶

The fourth resolution was more directly pointed at the action to be taken.

4. The conference approves the proposals set forth in M.S. Gorbachev’s report concerning the reform of the political system and ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Foreword
• The Life of Parliament in British Constitutional History
• Seeing Justice Done
• Privacy, the Press and the Public Interest
• The International Dimension to Deceaseds’ Estates
• The Soviet Constitutional Reforms of December 1 1988: an Analysis of the Changes from Draft to Law
• The Uses of Comparative Law in the Law of the European Communities
• Comparative Law: Home Rule(s)
• Private Damages Claims for Breaches of Securities Regulation Laws: the US and UK Approaches
• Obtaining Evidence Abroad
• The Protocol, the Bailiwicks and the Jersey Cow
• The Foundations of the Doctrine of Ultra Vires