LITUANUS LITHUANIAN QUARTERLY JOURNAL OF ARTS AND SCIENCES   Volume 25, No.1 - Spring 1979 Editor of this issue: V. Stanley Vardys ISSN 0024-5089 Copyright © 1979 LITUANUS Foundation, Inc.

REFLECTIONS ON UNION REPUBLICS IN THE NEW SOVIET CONSTITUTION*

With Special Reference to Their Sovereignty and National Language

JAAN PENNAR

For roughly one year, from May 1977 to May 1978, the Soviet population has been treated by its rulers to an educational campaign of constitutional rules and regulations. This campaign resulted in the ratification, on October 7, 1977, of a new USSR Constitution and, in the spring of 1978, of new Union republican constitutions.

As is the case with other political terms and definitions, the Soviet concept of a constitution is different from the traditional. It represents what the Communist party leadership regards as the "Soviet way of life," in effect, the latter's codification. According to Professor Yu. A. Tikhomirov of the Institute of Government and Law of the USSR Academy of Sciences, "with the help of the Constitution the society and state respond more pliably and effectively to newly emerging processes, relations and bonds (and) democratize basic political, economic and legal institutions. In the general legal system of Socialist countries this augments the relative weight of direct constitutional influence on societal relations. In a broader sense, this tendency reflects the general regularity [zakonomernost] of the strength of the role of law in a developed socialist society, in favor of ideological factors in particular."(1)

Tikhomirov further explains that "every structural part of the Constitution is not merely an element of their composition as a political-juridical document: the most important facets of the whole societal organism are reflected in it."(2)

The Soviet Constitution thus not only defines the governmental role in society but encompasses the latter as well. Like in medieval Christianity and orthodox Islam or Judaism, all behavior—whether governmental, societal or, for that matter, individual—is governed by constitutional rules and regulations. Furthermore, these rules and regulations are not eternal. As Soviet society moves towards communism, these will be superseded "dialectically," owing to historical developments.

According to this theory, Soviet nationality relations, too, are subject to similar changes. The ultimate Communist goal remains the rapprochement and eventual merger of nations. But the diversity of nations composing the USSR is a thorn that threatens to puncture this unitary vision. Soviet scholars are hard put in searching for a solution of the "national question" since it is officially considered resolved in the Soviet Union. Conferences on the subject suggest, regardless, that more research is needed on the problem, especially in the field of "ethno-sociology."(3)

The conduct of national relations, similarly to economic, is centralized, that is, subjected to Moscow's central authority. Centralization indeed is a key element in the new constitutional document.

In a collectively written article, the staff members of the above-mentioned Institute of Government and Law of the USSR Academy of Sciences dismiss the arguments which cite Lenin in support of decentralization and greater autonomy for the Soviet republics. According to the researchers of this authoritative Institute, "V. I. Lenin, like Marx and Engels, was consistent in his stand [which favored] democratic centralism and gave preference, other things being equal, to a unitary state with broad autonomy to those oblasts, [which are] distinguished by differences of life and the national composition of the population. In concrete cases when the situation of national relations is such that nations can be put together [united into a single state] by means of only uniting national governments, V. I. Lenin, as well as Marx and Engels, recommended federation. But he pointed out in this communication that a Socialist federation should represent a path to full state unity and that it should not contradict democratic centralism."(4)

This statement, while purported to favor centralized government, shows nevertheless that Lenin can be quoted as supporting greater autonomy for Soviet republics, including the right to secession; Lenin believed in a "voluntary" union.(5) To Lenin, of course, all the indicated qualifications were merely tactical steps on the road to world revolution. He could have barely foreseen that what he conceived as a temporary state structure on the eve of his death would still have validity more than a half century later. Soviet jurists associated with the USSR Academy of Sciences, however, consider centralization and a unitary state as real goals to be pursued with the greatest of vigor. The new Soviet Constitution indeed expresses their views. Paragraph 3 of Article 73 states that the "establishment of general principles for the organization and functioning of republican and local bodies of state authority and administration" fall within the jurisdiction of the USSR as a whole. Institute authors further underscore the all-encompassing nature of the Constitution by stating that the "basic law of the Soviet state is rightfully accepted as the law of life for all of our society."(6)

Of importance here is the new emphasis placed on law. The new Constitution, namely, not only attempts to legitimize the Soviet governmental system as well as the Soviet way of life, but it also guarantees legal protection to those who approve of it. Furthermore, the law affects the Communist party itself. Perhaps the most significant addition to the new Constitution is the clearly outlined role of the Party which the 1936 Constitution mentioned as if in passing, in the last sentence of Article 126. In the 1977 document, the Party's role is defined right at the start and thus prominently legitimized. A subclause in Article 6 — absent from the 1936 Constitution and from the draft of the 1977 document—however places the Party within the law: "All Party organizations shall function within the framework of the Constitution of the USSR." Presumably, this puts an end to such extra-legal activities as the Stalinist-type Party purges. These are now relegated to the past. As stressed by Soviet jurists, "the essential point in the dialectics of the development of the Soviet state system is the growth and strengthening of the role of law."(7)

The legal aspect is emphasized even in foreign policy definitions which represent, apart from national liberation aspects, rewritten portions of the Final Act of the Helsinki Conference of 1976. The Constitution, writes Boris Ponomarev, a Secretary of the Central Committee of CPSU, "legally strengthens what appears as the real substance of the foreign policy of the Soviet Union."(8)

Individual rights are similarly legitimized but with a better than previously clarified caveat: "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens." (Article 59) In other words, freedom is for the believers in the Soviet system only, with no room for dissident views or actions.

The Soviets are sensitive to criticism—which they claim emanates from abroad—that the interests of society and state take precedence over individual rights and freedoms. Their main point is that those rights include the right to work (Article 40) which is absent in the so-called capitalist world. Their counterarguments, as spelled out in instructions to Party propagandists, are to stress that in capitalist conditions, there exists a "right" to employment and lack of medical care, racial and national repression, discrimination against women and youth. Propagandists also are requested "to show the economic and political reasons for such discrimination."(9) For the sake of polemics, it could be argued back that the Soviet right to work is in effect an obligation enforceable by law and that if a person does not like the job to which he is assigned, he can be charged with criminal liability.(10) Be this as it may, the fact remains that the 1977 provisions on rights, freedoms and obligations are more circumscribed than those of the 1936 Constitution which were used by some dissidents in defense of their views. The dissidents, under the present Constitution, have become complete outcasts.

Discussion on the new Constitution began, it might be worth recalling, fifteen years ago. Nikita Khrushchev became the first chairman of a Constitutional Commission which was set up in 1962. Leonid Brezhnev took over in 1964. A new Party program went into force at that time. The formulation in the preamble of the new Constitution, as well as in Article 1, which calls the USSR "a Socialist state of the whole people," that developed from the dictatorship of the proletariat, dates back to the "new" 1961 program of the Communist Party of the USSR. Activities of the Constitutional Commission during the past fifteen years remain something of a mystery. All we know is that some of its members died, others were purged or retired without being replaced. The latter included republican officials. There also was a persistent stream of hints and rumors to the effect that the Union republics as such would disappear with the new Constitution. These rumors stopped, of course, with the publication of the draft. The role of Union republics was reemphasized by Brezhnev when the Constitution was promulgated on October 7, 1977.

In his speech to the USSR Supreme Soviet of October 4, 1977, Brezhnev noted that there had indeed been proposals to have the Union and autonomous republics, as he put it, liquidated. According to him, this represented an erroneous view: "The social and political unity of the Soviet people does not mean the disappearance of national differences at all ... We would be taking a dangerous path if we were to force artificially the objective process of rapprochement between the nations." As if to underline the Brezhnev statement, the Constitution added the word "sovereign" to the definition of a Union republic and referred to the USSR as a "federal" state. The original draft of the Constitution did not have such wording. Furthermore, as Brezhnev pointed out in his speech, the powers of Union and autonomous republics, as regards ensuring complex economic and social development on their territory (Articles 77 and 83), were more clearly defined in the final text than in the draft. It can, of course, be argued that coordination and control that a Union republic may exercise is very limited since it applies only to "matters that come within its jurisdiction." But who is to define this jurisdiction? Will a republic, armed, besides, with Article 18 of the Constitution which protects the environment, be able to make an all-Union ministry extracting mineral wealth on the territory accountable for the damage the latter's extraction of mineral wealth on the territory might cause? Conceivably, yes. Recently, for example, it has been reported that plans for strip mining of phosphate in northern Estonia have been abandoned, pending more sophisticated extraction methods.(11)

Except for the Stalinist ploy allowing republican military formations—abolished long ago in fact and now in law as well—it can be maintained that the union republics have retained their previous status. The dominant international legal opinion, however, states the contrary.(12) But certain facts should be considered in this connection. The 1936 Constitution was much more of a facade than the present one. Union republics in reality could not exercise all the powers that the Constitution had granted. Stalin, after whom it was named (although one of its main drafters was Bukharin who perished in the purges), could not care less about constitutional provisions. The emphasis on legality, on the other hand, in the promulgation of the present Constitution cannot but have an effect on its implementation. This has, of course, its own implications for Union republics. It gives an extra-legal uplift to their existence which can be explained only in psychological terms. The Baits, the Caucasians and Central Asians may now feel that they are indeed sovereign, albeit in Soviet parlance, and that there are certain rights the Union republics possess upon which they can insist. Basic to these rights is the use of one's own language.

The language issue flared up during the ratification debates of Union republican constitutions. It was, to be sure, confined to the Caucasian republics. These republics established their respective local languages as state languages. This was the case of Georgia in 1922 and the case of Armenia and Azerbaijan in the wake of the Stalin Constitution. Thus, the pertinent paragraph in the 1937 Georgian Constitution reads as follows:

The state language of the Georgian SSR is Georgian.

The national minorities living in the territory of the Georgian SSR are ensured the right of the free development and use of their native language in both their cultural and state institutions.

The same wording can be found in the Armenian and Azerbaijani constitutions. In the new draft constitutions, submitted for "public discussion" in early spring 1978, the above formulation was changed in the Armenian and Georgian drafts to read:

The Georgian [Armenian] SSR ensures the use of the Georgian [Armenian] language in state and societal bodies and in cultural and other institutions and exercise state concern for this all-out development.

In the Georgian [Armenian] SSR, the free use in all these bodies and institutions of Russian and also of other languages of the population that are used by it is ensured on the basis of equality.

Any sort of privileges or limitation in the use of one or another language is not permitted.

In other words, the state language as such was abolished. The Azerbaijani draft did not even bother to expound on the matter in a manner similar to the Georgian and Armenian drafts.

On April 15, 1978, a New York Times correspondent in Moscow reported demonstrations in Tbilisi, Georgia, which had occurred on the previous day, while the local Party plenum discussed the draft of the Georgian Constitution. The newspaper further reported that Georgia's First Party Secretary, Eduard Shevardnadze, asked the crowd (mostly students) in Georgian: "My children, what are you doing?" To which the demonstrators shouted back: "We're not your children" and some of them swore. Shevardnadze reappeared later to announce in Russian that Georgian would be preserved as state language.** (For pacifying the students and Georgia, it is very likely, in November of 1978 Shevardnadze was elected candidate member of the Politbureau). Similar demonstrations were reported in Erevan, Armenia.(13)

While it seems improbable that the state language was restored as a result of the demonstrations, both Georgia and Armenia announced shortly that they had reverted back to the state language clause.(14) Azerbaijan soon followed suit. No similar action was taken in other republican constitutions. A constitutional amendment could accomplish this in the future. It could be questioned, of course, whether the matter has not been blown out of proportion. The Great Soviet Encyclopedia states, for instance, that a state language represents nothing more than the language of the majority of a given state.(15) Psychologically, however, there is no doubt that the language issue is rooted deep in national pride and that the Soviets are extremely sensitive to it.

The language issue as such has been largely played down in other republican constitutions. The Estonian Constitution, in common with most, touches upon it in but four articles in the following manner:

Article 34 in the Estonian Constitution (same Art. 34 in the Lithuanian and Latvian) refers to the "opportunity" to use the mother tongue and other USSR languages (same in the Lithuanian and Latvian text) in terms of Estonian SSR citizens having equal rights. Article 43 talks about the "opportunity to study in schools in one's mother tongue." (same article and same wording in the Lithuanian and Latvian constitutions) The decisions and other acts of the Estonian SSR Supreme Soviet are to be published in Estonian and Russian, according to Article 103. (Same number in the Latvian and Lithuanian texts) Court proceedings are to take place in Estonian or in the majority language of the populace of a region (Article 158; respective formulation in Lithuanian, Art. 157; in Latvian, Art. 159). And, finally, the republican coat of arms has both Estonian and Russian inscriptions: "Proletarians of the world, unite!" (Art. 167 in Lithuanian) That's the extent of it. It should, nevertheless, be pointed out that the previous Estonian SSR Constitution referred to the language also in four places (the use of Estonian in court, education in the native tongue, publication of decrees, and the coat of arms). In no case is Estonian or respectively the other two Baltic languages referred to as the state languages.

Apart from the Caucasus, the language issue also cropped up during the "public discussion" of other republican constitutional drafts. Thus, an Uzbek scholar complained that the Uzbek draft Constitution retained the basic features of the old Uzbek SSR emblem, on which the Russian version of the slogan "Workers of the World, Unite!" appeared on the left side and the Uzbek version on the right. He suggested that this be reversed, to conform with the positioning in other republican emblems.(16) This was done. The Estonian literary weekly Sirp ja Vasar carried commentary on the draft wherein, in terms of learning about other Soviet peoples and the consequent international friendship, the author suggests that "we should probably do more than previously to facilitate to Russians, Ukrainians, etc., and other brotherly national representatives living in Estonia the learning of the Estonian language, and to have them familiarize themselves more deeply with our literature, art and culture in general."(17)

"Public" discussion of republican constitutional drafts in general netted but a few changes in the final version. Most of the suggested amendments dealt with the heightening of work discipline and other issues of lesser substance. The major suggestion in Estonia which was incorporated into the final text concerned a change in the preamble. In line with several suggestions along this line, the text was amended to read that the October Revolution did not only create a new society but also established Soviet power in Estonia by destroying the capitalist and baronial landlord rule. This created a Commune of the Estonian Working People which had to retreat, however, owing to "imperialist" intervention and counter-revolution. Soviet power was restored, the preamble continues, in 1940.

The Lithuanian draft was similarly revised. Again, Soviet power is reported as having been established in 1918 and re-instituted in 1940. The hiatus between these dates was due to "imperialism and national bourgeoisie." Concerning annexation in 1940, there is an interesting difference in wording between the Lithuanian and Estonian preambles. The former states that the Lithuanian SSR "voluntarily entered the USSR" on the basis of "free self-determination of its people." So does the Latvian preamble.

The Estonian preamble omits the latter qualification and speaks of voluntary entry only. These preambles state further, and this was not part of the drafts, that the peoples of the Baltic republics feel themselves an "inseparable part of the whole Soviet people." This statement, in effect, annuls the secession clause in both republican and USSR constitutions. The same is stated in eight other republican constitutions. In the Ukraine the "public discussion" questioned the need for the secession clause altogether. As a result of these formulations, ten union republics are "inseparable" from the USSR while others are not.

There are probably two good reasons why the secession clause was retained in these constitutions. In the first place, the clause provides for the legal fiction that the USSR is a federal state. In the second, it pays homage to Lenin who insisted upon it to support his claim that the USSR was a "voluntary" union of nations.

Since the purpose of the secession clause is largely declaratory, it can be assumed that the word "sovereign" as applied to union republics does not mean much either. At one point in time, legal Soviet commentators talked about the union republics' transfer of some of their sovereignty to that of the Soviet Union. This interpretation is no longer valid. What we now have instead is something which makes each administrative part of the USSR share in a common sovereignty. As one Soviet legal scholar put it: "The relationship between the sovereignty of the USSR and the sovereignty of the union republics is characterized by the fact that they do not oppose each other, [that] they do not exist in isolation, individually, but reciprocate [interact], without interfering or engulfing one another. The interrelationship of the sovereignty of the USSR and the sovereignty of the union republics guarantees their harmonious union."(18)

Harmony in politics, however, means compromise. It remains to be seen, for instance, how harmonious the relations between Union republics and Moscow will be when it comes to taming the economic managers. It is not only the All-Union Constitution which provides for "coordination and control" over All-Union enterprises by the Union republics but the latters' constitutions as well. Only when a conflict situation develops will it be possible to determine how much sovereignty the Union republics possess "within their jurisdiction," in Soviet constitutional parlance.

Similarly, only the future can tell whether the emphasis on legality in general in the new Soviet Constitution will be observed or whether there will be a return to the "facade" nature of the 1936 Constitution.

* Revised text of report presented at the Sixth Conference on Baltic Studies, University of Toronto, May 11-14, 1978.
** Subsequently a prominent Georgian film director (Avtandil Imnadze) was detained, presumably in connection with public demands he made, including appeals sent abroad, that Georgian remain the state language.
1 Yu. A. Tikhomirov, "Problemy teorii sotsialisticheskoi Konstitutsii" (Problems of Theory of Socialist Constitution), Sovetskoe gosudarstvo i pravo, No. 2, 1978, p. 8.
2 Ibid.
3 Cf. "Russification Discussed at Recent Nationality Conference in Estonia," Radio Liberty Research, RL 506/76, December 27, 1976.
4 "Dialektika rasvitiia sovetskoi gosudarstvennosti i Konstitutsiia SSSR" (The Dialectics of Soviet Governmental Development and the USSR Constitution), Sovetskoe gosudarstvo i pravo, No. 4, 1978, p. 8.
5 Cf. "Soviet Nationality Policy and the Estonian Communist Elite" by Jaan Pennar in Tönu Parming and Elmär Jarvesoo, eds., A Case Study of a Soviet Republic—The Estonian SSR (Boulder, Colorado: Westview Press), p. 108.
6 Sovetskoye gosudarstvo i pravo, No. 4, 1978, p. 3.
7 Ibid., p. 12.
8 Problemy mira i sotsializma, No. 2, 1978, p. 4.
9 Politicheskoe samoobrazovanie, No. 3, 1978, p. 78.
10 Cf. Lev Yudovich "The Right to Work in the USSR: An Obligation Enforceable by Law," Radio Liberty Research, RL 42/78, February 17, 1978.
11 During the "public discussion" of the republican constitutional draft in Estonia, a suggestion was made to strengthen the provision for environmental protection by making enterprises directly responsible for it (see A. Töugjas in Rahva Hääl, April 4, 1978). On May 1, 1977, a law was ratified in the Estonian SSR, moreover, entitled "Estonian SSR Codex of Extractive Resources." An article dealing with the latter discusses, among other things, the waste resulting from present methods of extracting shale (see Eesti Loodus, November 11, 1977, pp. 699-704). On the subject of phosphate, the delegate from the district affected had the following to say at the Estonian CP Plenum in December, 1977: "In connection with utilization of the Toolse phosphorite mineral deposits it is necessary to coordinate the activities of all interested ministries and official bodies so as to work out the plan for economic and social development until 1990." (Rahva Hääl, 21 December 1977).
12 Cf. Boris Meissner in Europa Archiv, November 25, 1977, p. 807, and in Osteuropa, No. 1, 1978, p. 15.
13 Graig R. Whitney in The New York Times, April 15, 18 & 19, 1978; and "Lawyers Tell of What They Heard in Tbilisi," UPI, Moscow, April 17, 1978.
14 Cf. Ann Sheehy, "The National Languages and the New Constitutions of the Transcaucasian Republics," Radio Liberty Research, RL 97/78, May 3, 1978. Apparently, public opinion polls conducted in Georgia tipped the scales in favor of retaining the state language clause. The feelings on the subject ran high, as evidenced by the following statement to the Georgian Supreme Soviet by the writer G. K. Natroshvili: "Our native tongue, pronounced the state language by the constitution, is an object of our special pride. This is a very great treasure of the Georgian people, concern for which has been elevated into a constitutional task." (Cited in Ibid.)
15 See Bolshaia sovetskaia entsiklopediia, 3rd ed., 1972, p. 176.
16 Sovet Ozbekistani, April 9, 1978.
17 Sirp ja vasar, March 24, 1978.
18 V. C. Shevtsov, "Nekotorye problemy teorii Sovietkogo soiuznogo gosudarstva" (On Some Problems of Soviet United Government), Sovetskoe gosudarstvo i pravo, No. 4, 1978, p. 34.