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The rule of law: Will it survive in Russia?

In the face of deep moral and cultural uncertainties, judicial leaders in the former soviet republic are facing a great challenge: To reform their judicial system so that is both independent and respected.

That was the underlying theme of remarks made last week by former Washington Supreme Court Justice Robert Utter, when he spoke to judges at the annual state judicial conference about his experiences as consultant, commentator, and diplomat to republics of the former Soviet dynasty.

Justice Utter

Utter's work in the former soviet republic was an "accident" of sorts. In the 80's, he was recruited to make several trips to China to study that country's approach to non-court dispute resolution, a technique which has been used in that country for centuries.

Following his work there, a friend asked him in 1991 to travel to Moscow. As it happened, he arrived there at a sensitive time--when a coup was being staged against the country's champion of glasnost: Mikhail Gorbachev.

"There were so many hopes and fears for the future. It was like (the Russian revolution of ) 1917--everything was changing, but you weren't sure how," Utter explained. "There was euphoria and hopes for a whole new political system."

Corrupt Judicial System

During his first trip, he discovered just how the Soviet judicial system worked.

He learned that, to be a judge, you first had to be a member of the Communist Party. The concept of judicial independence was virtually unheard of. "In the old system, the Communist party would pick up the phone and tell their appointed judge, This is the way we will rule today.'" Utter explained.

Due process, a bedrock concept in the West, was a foreign term in the old soviet system. Once apprehended and arrested, one could expect a trial "maybe in six months, one year or five years they could wait you out."

While the timely processing of cases has greatly improved since the collapse of the Soviet government in 1991, it was that system that had been in place for more than a generation. Disrespect for judges and contempt for the judicial system prevailed. One of the great questions Utter's colleagues were asked was how to establish a non-corrupt judiciary, given the country's history.

In one of his many trips with the American Bar Association's Central and East European Law Initiative (CEELI) program, Utter said the group's goal was to develop institutions that would work against corruption, then find people to implement them. Local elections of judges are key, Utter said, since the people know who of those among them can be trusted.

There is great variance in the progress of each republic. Kyrgyzstan, for instance, a small, former republic of the USSR near China's northern boundary, has made the most advances.

"The trial judges know how our procedures work, and are amazed that our level of corruption is zero. They are looking to increase prestige, and develop judicial selection and removal systems to build public confidence," he said.
The issue of developing a judicial conduct commission came to the forefront, but was ultimately shelved by members of the legislature out of fear it would lead to a review of their own jobs. Another major concern: who controls the administration of the courts, and working conditions for judges, some of whom are working without telephones or even writing paper.

Building A New Rule Of Law

Building new respect for the rule of law in a country which has never operated in those terms is not easy.

"In my great naiveté, I felt that if its on paper, then it must exist," explained Utter. "It just doesn't work this way," Utter said.

The low status of the judiciary, coupled with distrust of democratic institutions, makes it very difficult for citizens to understand the concept of separation of powers.

Added to this is another current crisis: the inability to enforce court orders and decrees. Many experts fear there is a very real possibility that criminal elements will take over. To underscore the point, Utter read a headline from a magazine article on the topic: "Is there a role for the Mafia?" "Unless you find a way to enforce court orders, maybe there is," Utter said.

On paper, however, a number of the former soviet republics are putting final touches on a criminal code. "They are very knowledgeable about our system," Utter said.

Euphoria Dissipates

The euphoria of 1991 quickly dissipated when citizens realized that democracy was easy to dream but difficult to realize, and that, economically, most had been much better off prior to the collapse.

After spending a week with members of the Russian parliament drafting a new constitution, Utter was both encouraged and cautious.

"There is a marvelous amount of idealism, but there is such a strong slant, historically, towards a disrespect for the law."

That's not to say that reform is hopeless, Utter said, but that it would be a long process. Ultimately, he said, it will take "a different resolve." "When pickpockets earn 10 times what policemen earn, how can you compete?"

There are other, large, non-judicial problems, like collecting taxes. Collected locally in 90 separate regions, local officials must then decide how much should be sent to the national system. "Imagine the Washington Legislature deciding how much to send back to Washington D.C.!" Utter said.

With all the chaos and economic turmoil, the outlook for democracy is bleak. Utter said all but one bank has closed, leaving citizens without their savings.

"Can you imagine what would happen in our society? The streets would be ablaze, and the government would certainly be out," said Utter. "The extraordinary thing is the people have suffered so much and been so passive. How much more will they have to endure? Currently, many are wondering how they will survive the winter."

Moral Vacuum

Added to this, is the underlying cynicism of the youth of the former soviet republic who have been told that communist doctrine, the ideological history of their culture, was all a lie.

A former top-level member of the Communist Party told Utter what life was like under the old system. "You have no idea what it's like to have to lie every day of your life to survive," he said.

This, along with the pervasive corruption in the current government, has combined to create an overall lack of a national moral compass.

It has all led to what many think is an absolute lack of respect for the law. The citizens' response?

"Everyone is dealing with it in their own way, but it has manifested itself in several ways," Utter said. For example, the Greek Orthodox Church, and many other western Christian ministries have expanded exponentially. "The need to fill this moral vacuum is very real."

Long Road To Reform

On one of Utter's many trips to the former republic, one citizen asked him whether there was anything he could admire about their country.

"The list is long," he said. "The Russian people display such courage and intelligence and are willing to suffer incredible hardships."

But due to the many historical, economic and cultural factors at work in the former Soviet Union, he has also concluded the country will face an arduously long road to reform.

"I have learned not to expect major change in my lifetime," he said. "I'm reminded of that old saying, You build a beach one grain of sand at a time.'"

Justice Utter has served as a commentator on proposed constitutions of Albania, Romania, Lithuania, Russia, Azerbaijan, Uzbekistan, Byelorus, Kazakhstan, Kyrgyzstan, and the Ukraine. He has also spoken to numerous judges in the former Soviet Union republics on judicial independence, the formation of judicial associations, and judicial education.