International Impact

By Michael S. Serrill

The Soviet constitution is an impressive document. It allows freedom of the press, of assembly and of religion. Discrimination based on sex, race or nationality is forbidden. Every citizen has the right to a job, to "rest and leisure," to free health care and education, to housing and even to such "cultural benefits" as television programs and books.

No wonder Soviet workers take off every Oct. 7 to celebrate the adoption of this generous charter. But the reality is that most of the Soviets' political freedoms have never existed in practice or are locked in a straitjacket of limitations. Article 39, for example, is a loophole as wide as the ruling regime wants to make it: "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of the society or the state."

The text makes clear who decides those interests. The Communist Party, whose members include 6.7% of the nation's 282 million people, is the "leading and guiding force of Soviet society and the nucleus of its political system." That mandate is so broad the document does not even mention the groups that really run the country: the 14-member Politburo and the 307-strong Central Committee.

Unlike its U.S. counterpart, the Soviet charter is not the law against which other laws are judged. Instead, an exhaustive compendium of legal codes takes precedence, and the Soviet Supreme Court is not empowered to override such laws by invoking the constitution. "There is no system of checks and balances whereby the judiciary can say to the legislative branch, 'You can't do that, it's against the constitution," says Harold Berman, a Soviet legal expert at Emory University.

"If it is politically expedient, an individual's rights will be sacrificed even though the constitution very clearly says he has those rights," says Peter Maggs, a Soviet legal expert at the University of Illinois. "If there is a dissident who is making a nuisance of himself, the authorities will find a way to deal with him."

Why then trouble to have a charter at all? Though political freedoms are a glaring exception, the Soviet government does provide much of what the constitution promises: housing, education, pensions and cradle-to-grave security. And in the great majority of court cases, Maggs points out, "Soviet law, including constitutional rights, is applied the way it is supposed to be."

The Soviets are living under their fourth constitution. The first, adopted in July 1918, attempted to lay out the structure of the Soviet government without even mentioning the Communist Party. The 1924 constitution, which formally recognized the creation of the multinational Soviet Union, gave individual states the right to secede -- a fiction that remains in the current text. The 1936 revision, known as the Stalin constitution, theoretically expanded personal freedoms at a time when the dictator's Great Terror was sweeping the country. The current version was adopted in 1977. One of its key changes: the right to sue the state, which has seldom been exercised but which Party Leader Mikhail Gorbachev is trying to strengthen through a reform of the Soviet legal code.

Gorbachev seems to be more mindful than his predecessors of the constitution's unfulfilled promise. Freedom of speech and of the press has been expanded, and he has released more than 100 political prisoners. But Gorbachev's very rise to power is an example of one of the document's most notable deficiencies. Because the charter says nothing about the structure of the Communist Party, it does not limit Gorbachev's authority or make provision for an orderly transition. Rather, control of the apparatus of government is in the hands of powerful party cliques, which vie for power behind closed doors -- and beyond the reach of any constitutional restrictions.

With reporting by Sally B. Donnelly/New York and Ken Olsen/Moscow