The Newest Players in the Russian Power Game : Justice: The Constitutional Court is making waves with decisions based on the law--and people are obeying. But can it stay out of politics?

Boris N. Yeltsin’s great triumph in last Sunday’s referendum was made possible by one of the most astonishing phenomena of Russia’s post- communist era--the newly created Constitutional Court. Five days be fore the vote, the court, led by its controversial chairman, Valery D. Zorkin, ruled that the Russian president needed only a majority of the votes cast--not a majority of the registered voters, as his parliamentary opponents claimed--to win the referendum. Without this ruling, Yeltsin’s solid 59% vote would have carried little weight.

Russia has virtually no tradition of an independent judiciary. The court was created by the Congress of People’s Deputies in May, 1991, as part of the Gorbachev-era reforms. Its judges were chosen by the Congress from a list submitted by Yeltsin. Zorkin, who had headed a commission of experts writing a new constitution and is a forceful proponent of strong presidential power, was made chairman.

From its beginning, the court has been confronted with legal hot potatoes. Its first case was a challenge to Yeltsin’s ban of the Communist Party and his order to confiscate party property following the failed August coup. Before the court could take up these issues, however, it was forced to deal with a Yeltsin decree merging the secret police with the ministry of interior.

Since the last such merger was ordered by Josef Stalin before the murderous purge trials, Yeltsin’s action set off shock waves. The judges were threatened with physical harm. Explosive devices were hurled at one of them, and Zorkin received death threats after the ruling. Nevertheless, on Jan. 15, 1992, the court struck down Yeltsin’s decree, and after some grumbling by his aides, the president obeyed.

A few months later, the court tried to stop the Tatarstan republic from holding a referendum on independence from Russia, but its ruling was ignored. It did, however, successfully block an effort by the Supreme Soviet to take control of intellectual property, ruled that it was wrongful age discrimination to fire two elderly workers and overturned a Yeltsin ban of a right-wing party.

The challenge to Yeltsin’s decrees on the Communist Party, which was expected to set off the most fireworks, ended in a calmly received compromise. After a five-month trial involving scores of bitterly contentious witnesses and mountains of documents, the court upheld the ban against the nationwide party structures, allowed its local units to survive and largely voided the confiscation of the party’s property.

All this is quite unremarkable, except that from the beginning, the court’s judges, especially Zorkin, have been outspoken and much in the public eye. Zorkin frequently appears on television, holds press conferences and gives interviews, and regularly addresses the Supreme Soviet. What is most astonishing is that he has inserted himself into the increasingly acrimonious power struggle between Yeltsin and the Congress of People’s Deputies. For example, he brokered the December, 1992, compromise between them, which, among other things, called for last week’s referendum. This kind of political interventionism by a judge would usually be condemned elsewhere, but in Russia it was widely approved.

Or so it was until last January, when Zorkin changed his mind about the referendum and publicly urged that it be abandoned. Yelstin, who sees the referendum as his strongest weapon against the unpopular Congress, was furious. His supporters attacked Zorkin for siding with the president’s enemies.

The partisanship charge was reiterated a few months later, when Yeltsin, frustrated by a Congress that stripped him of much of his power, announced that he would govern by presidential decree. Before Yeltsin even formally issued the decrees, Zorkin went on television to condemn the “special regime” as unconstitutional and immediately convened the court. After an all-night session, a sharply divided group of weary judges agreed with their chairman, but declined to recommend Yeltsin’s impeachment, as the Congress had hoped. When an impeachment motion was made in Congress shortly thereafter, it narrowly failed.

Yeltsin’s supporters on and off the court again lambasted Zorkin, charging that parliamentary Chairman Ruslan I. Khasbulatov had bought him off with some fancy housing, which Zorkin denied. Despite his criticism of the court’s action, Yeltsin abandoned his intention to govern by decree, and a few weeks later went to the court to ask it to make it easier for him to win the referendum.

There is no doubt that Zorkin went too far in condemning Yeltsin’s proposed decrees before even reading them. The chairman’s earlier comments opposing the referendum were also inappropriate, since no constitutional or other legal issue was involved. But the court’s formal condemnation of Yeltsin’s attempt to rule by presidential decree was legally correct. The 1977 constitution is still in force and is the amended document that created not only the Constitutional Court but also Yeltsin’s presidency. No judge sworn to uphold his country’s constitution could have decided any differently.

Nor should Zorkin’s ill-considered remarks and missteps be fatal to the court and its status. Chief Justice John Marshall’s decision in Marbury vs. Madison, which established the principle of judicial review over congressional action, was intensely political in almost every aspect. In the republic’s early years, many federal judges were guilty of some highly inappropriate political interventions. None of this stopped the Supreme Court from becoming our primary guardian of the rule of law. The federal judiciary subsequently learned to stay out of politics.

Establishing the rule of law in Russia will be difficult. It will be virtually impossible if its Constitutional Court loses the respect of the Russian people. That has not yet happened, because the court has performed well. But the history of the Soviet judiciary is one of supine submission to political power. If Zorkin and his colleagues continue to mix judging and politics and are perceived to be taking sides, they will be regarded as just another incarnation of Soviet-style justice.