Draft of the Constitution - Pitiful form, pernicious substance 0

Review of Draft of the Constitution

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On October 12, 2001, a four-member task force closeted within the Social-Democratic Workers' Party of Latvia released a bizarre document. The document is a draft of "editorial changes" in the Constitution of the Republic of Latvia to be put to a referendum in 2002, in conjunction with elections to the 8th Legislative Assembly.

Far from merely tinkering with the existing text of the Constitution, the draft lays out a constitutional order quite unlike that which the Constitutional Convention of 1920-1922 brought forth. On surface, the draft comes across as both a misguided pursuit of modernity and a cynical pre-election partisan ploy. Upon a closer look, it impresses one as both pitiful in form and pernicious in substance. It is laden with symbolic and often irrelevant matters having no connection with the hard and sustained practical work economic and political reform demands. It is saturated with demagogy.

Because of the potential dangers the draft poses to the political and economic development of Latvia, it demands close scrutiny. However, only a small number of points can be made within the confines of the present forum.

The Constitution of 1922 is a concise document of approximately 3000 words written in a spare prose style. Apart from its unabashed espousal of a few broad principles, like popular sovereignty, representative democracy and equality before the law and court, the Constitution is remarkably restrained and follows no party line or ideology. It limits itself to establishing the bare structure of the state and defining the powers of its branches and relations between them. That is, the Constitution does no more than provide a spare framework within which free people of a small country can flexibly, yet in an orderly fashion, channel their energies to meet the challenges of a constantly changing larger environment over which they have little influence. Two technical amendments in 1933 regarding referenda expanded the text by only 40 words. And after the Constitution was fully revived in 1993, the Legislative Assembly continued to abide by the structural and stylistic integrity of the historic document when it voted a few, mostly technical, amendments in 1994, 1996, and 1997. Even the new Title 8 on "Basic Human Rights" adopted in 1998, though defective in several respects, conforms to the original understanding.

By contrast, the roughly 18,000-word draft exceeds the original text by a factor of six. Where the original text shunned redundancy and imprecision, the draft embraces prolixity and the lax phrase: "truly democratic state of the whole people" (Preamble; patterned on Khrushchev's vsenarodnoe gosudarstvo); "citizenship of the state of Latvia is a person's political and legal link with the state of Latvia in time and space" (Article 3); "the state makes sure that old people can, as long as possible, remain full-fledged members of the society, lead an honorable and humanly dignified and independent life in their accustomed setting, take part in social and cultural life, receive information about services available to them, as well as have a dwelling and personal and health care corresponding to their needs and their and the state and local government resources" (Article 37); "the Cabinet of Ministers and the subordinated Ministry of Foreign Affairs realize foreign policy of the state, ensuring highly professional foreign policy that is versatilely balanced and directed toward realization of the national interests and external security of Latvia"(Article 137). For full flavor, the entire document - all 191 articles and all 83 pages - must be read.

If the overblown rhetoric lacing the draft can be cause for occasional merriment, the substance of the draft is no laughing matter. The document reeks of nostalgia for the unfulfilled fantasies of Soviet socialism. It occupies itself with the distribution of a national product yet to be created under the vigilant eye of an intrusive and rigid state.

Constitutional protection of property rights, free entry into occupations, trades and business, and the freedom and security of contract, combined with an independent judiciary, is a proven way of encouraging investment in and growth of productive activities. As a capital-starved country, Latvia is heavily dependent on international investment. Reliable international investors expect the host country constitutionally committed to the prerequisites of a market economy and a stable and sound legal environment. To be effective, the commitment must be unclouded by circumlocution. This is especially true when the host is a post-socialist economy. While no right or freedom can be absolute, vague qualifications or reservations and textual inconsistencies are apt to repel investors and stifle enterprise.

Article 33 of the draft provides for protection of property rights and freedom of entrepreneurial activity, yet in the same breath admonishes that "property imposes obligations-the interests of other persons and society presumed in a civil society must be observed in its use." Moreover, "all natural resources of Latvia belong to the people of Latvia" (Article 1), and "the territory of the state of Latvia may not be alienated by sale or otherwise" (Article 5(2)), whatever that means. Article 34 provides both for a job-specific but otherwise unspecified minimum wage and, very specifically, for a four-week paid vacation each year for everyone. According to Article 36, owners of housing properties may not evict any tenant, even upon a judgment of the court "without immediately allocating another suitable dwelling"! Things get even murkier in Article 150: "The economy of Latvia functions in conditions of state-regulated market." The constitutionally dictated goals of state regulation would include, among others, "making sure the market mechanism successfully functions in the interests of the state, local government and the entire society," "not allowing, as contrary to the interests of the society, the concentration of land, principal natural resources and services in the ownership or control of a narrow circle of persons, above all, foreign countries or foreigners, as a result of free movement of capital," and "not allowing a situation to develop where the enterprises and entrepreneurs of Latvia are, in particular as to taxation, disadvantaged as against foreign enterprises and entrepreneurs." Lastly, Article 155 provides that "Latvenergo", the state electric power monopoly and den of socialist political support, "may not be privatized or given as a security either in its entirety or parts."

It has been said that constitutions must be compatible with the culture and mores of those whom they regulate. In one sense, however, the opposite is true. Constitutional provisions should be designed to work against, much less to encourage, precisely those aspects of a country's accustomed ways that are likely to produce harm through the ordinary political processes. This applies with a particular force to a post-socialist country like Latvia. Its constitutional order should not lend support to the most threatening tendencies that have survived the collapse of the costly Soviet experiment. The draft, however, proposes to do just that.

The circumscribed private rights the draft purports to concede appear even more precarious in light of the proposed provisions concerning the judicial system.

In keeping with its terse style, the Constitution of 1922 provides that "judges are independent and bound only by law." Another brief provision ensures that this is not a mere formal declaration. Once the Legislative Assembly has confirmed a judge of the ordinary courts, the Assembly may remove the judge from office only for cause specified in law and, most importantly, only upon a previous decision emanating from within the judiciary.

The draft, by contrast, while rich in solemn declarations (e.g., Articles 17, 164(1), 166), makes certain the judges exercise their independence under the watchful eye of a political branch. "The Legislative Assembly elects [appoints] judges to a four-year term" (Articles 46(27) and 168(1)) and "may remove [atcelt] a judge from office before the expiration of the term by a majority vote"(Article 169). Article 169 is singularly incoherent not only in the numbering of sections and use of terms but also in substance. There are two sections "2". Grounds for "dismissal [atlaišana]" listed in one of these sections include "negligence in judging that has caused significant consequences," "shameful misdeed incompatible with the status of judge," and "[the judge's incompatibility] with any of the requirements of … the law on judicial power." As the Legislative Assembly has the exclusive right to "shape the judicial system of the state" (Article 46(26)), nothing constrains it from creating an indeterminate list of substantive grounds for the dismissal of judges and instigating their removal at its whim. The other section "2" prohibits "dismissal of a judge against his will."

It is beyond my comprehension that a court in applying laws (legal norms) can avoid interpreting the laws and thereby explaining them. However, according to Article 46(1), "only the Legislative Assembly has the right … to explain laws." Furthermore, "except for the Constitutional Court, no other court may question the validity of a properly published law or normative act or its compatibility with the Constitution" (Article 173(3)). Yet the President of the State may request explanations from the Supreme Court regarding questions of law (Article 105(2)(29)). In a world of narrow judicial horizons, this can, apparently, be accomplished without trespassing upon the forbidden territories of explanation of laws and validity of legal norms. Such provisions seem to be consciously crafted to perpetuate the judicial semi-literacy bequeathed by sovetskoe stroitel'stvo.

Having "simplified" and reduced the judicial functions of judges, the draft assigns them political responsibilities, like "providing procedural and administrative assistance to the Legislative Assembly's investigating commissions" (Article 72(8)), helping to remove the popularly-elected President of the State (Article 112) and, if the attempted removal succeeds, joining an interim political triumvirate (Article 115(2)), advising the President of the State on "the main strategic goals, tasks and solutions" (Articles 117 and 118(2)), and facilitating the ouster of the Prime Minister (Article 128(8)).

Several years ago, a country on another continent emerged from the rule of a self-anointed emperor. Also handicapped by inexperience and deficient understanding of what it takes to achieve workable governance, the country adopted a constitution the size of which rivals the present draft. In a moment of sobriety, however, its authors wrote into the preamble the words: "God, help us all!" The Latvian socialist task force, staunchly eclectic and never known to shun extra words, might wish to follow their example.

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