Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 5 - Evidence
OTTAWA, Tuesday, April 3, 2001
The Standing Senate Committee on Foreign Affairs met this day at 6:02 p.m. to examine and report on emerging political, social, economic and security developments in Russia and Ukraine; Canada's policy and interests in the region; and other related matters.
Senator Peter A. Stollery (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we could characterize this as our "legal" meeting. With us is Professor Solomon from the Centre for Russian and East European Studies at the University of Toronto.
Please proceed, Professor Solomon.
Mr. Peter H. Solomon, Jr., Professor of Political Science, Law and Criminology, Director, Centre for Russian and East European Studies, University of Toronto: I propose to speak for about 15 minutes on the subject, "Putin: Law and Courts."
Law and courts matter to Vladimir Putin, and he is personally involved in their reform. Putin cares about law and courts because of their potential, first, in strengthening central government in the Russian federal system after years of power slippage to the regions and republics and, second, in creating a good climate for investment, the theme, after all, of his recent visit to Canada.
What was the state of law and courts on the eve of Putin's ascension to power and what has been done to address their weaknesses under his watch thus far?
Two major problems with Russian laws in the past have been the inconsistency of laws between different levels of government and the lack of authority of federal laws, in particular, and their weak enforcement. Inconsistencies often fell in the many areas of joint jurisdiction between the federal government and the subjects, especially when regional laws preceded federal legislation or the latter was vague. Sometimes, bilateral treaties authorized particular deviations from federal law, including from the constitution. However, many subjects of the federation have been ready to defy the centre, even when it speaks clearly on issues, and most of the fundamental laws of the subjects -- that is to say, the constitutions and charters -- violate the federal constitution at least in small ways. This situation makes the legal protection of businesses, for example, uncertain, as judges must choose which laws to apply.
In response, the Putin administration has emphasized a number of themes. One of them is the harmonization of laws between the different levels of government, a responsibility given in part to the new federal district administrations -- these seven outposts of the federal government in different parts of the country.
Another theme is the writing of new federal legislation in crucial areas like taxation and land, subjects about which we can speak, if you like.
A third is establishing responsibility, even criminal responsibility, for governors and mayors who fail to rescind laws deemed to contradict federal law, and creating new administrative courts above the subject governments, in 21 districts, to provide review of the legality of normative administrative acts of regional government.
Finally, there are also discussions underway now of enhancing the enforcement of decisions of the constitutional court regarding inconsistency in laws, trying to find formal mechanisms to assure that constitutional court decisions have more clout than many of them now do.
There can be no effective law, however, without courts -- courts that are independent, empowered, trusted and respected. As I am sure you know, courts in the Soviet period had none of those attributes. A decade of judicial reform has improved this situation considerably. The Russian government has established life appointments for almost all of its judges and has allowed them to develop institutions of the judiciary with exclusive control of judicial discipline -- the qualification commissions -- and of court administration -- the judicial departments -- which took administrative support away from the ministry of justice.
In addition, the Russian government has expanded the jurisdiction of the courts into a whole range of new areas of activity: constitutional conflicts based on the constitutional court; judicial review of administrative acts, which is now very broad and encompassing in Russia; supervision by the courts of the pre-trial phase of criminal investigations, which will, I think, expand further in the next year or two; and resolution of commercial disputes in the arbitrage courts.
Note that Russia is far ahead of other countries of the commonwealth of independent states, including Ukraine, in most aspects of legal and judicial reform.
To be sure, the full realization of these achievements has been hampered by the underfunding of the courts by the federal government, which has allowed regional and local governments, and even private firms, to become unofficial sponsors of the courts, potentially threatening their new-found independence.
Apart from improved federal financing, the agenda for judicial reform includes passage of new procedural codes -- civil and criminal -- and improvements in the recruitment and training of judges.
At the start of 2000, Vladimir Putin, even when he was acting president, began increasing spending on the courts, partly to pay the salaries of judges on a brand new layer of the court system -- the justice of the peace courts -- and partly to begin improving the situation of existing courts.
In late November, 2000, Putin announced that judicial reform was one of the six priority targets of the Russian government for the year 2001. He appointed a presidential working group for judicial reform under the deputy head of the presidential administration, Dmitrii Kozak, a close confidante of Putin's from St. Petersburg days.
There was, to be sure, a special twist to Putin's approach to the courts, a concern not only with their autonomy and efficiency but now also with the accountability of judges and the appearance that their peccadilloes of all kinds were handled properly -- this, in response to the common perception in Russia, supported by many public opinion polls, that judges could act irresponsibly, even corruptly, without facing consequences.
The Kozak group, which is still meeting, but began meeting in January, has 28 members, and through its various subgroup has developed sets of proposals on judges and courts, civil and criminal procedure reform, and the regulation of the defence bar. Its many proposals became the subject of at least two intensive, long meetings this past month between the top judges, heads of the presidential administration and Vladimir Putin himself, who reportedly rendered decisions personally on what would go into the new packet of draft laws.
Putin has also promised repeatedly and publicly financial support wherever needed, for example -- and there was a commitment in the last two or three days -- to pay for new judges and new court staff needed for the courts to assume responsibility in place of procurators for the initial approval of pre-trial detention orders, to approve locking people up before trial, a measure that is included in the new draft criminal procedure code and required by the constitution.
The Kozak group's recommendations relating to accountability include the following: placing outsiders, prominent jurists who are not judges, on the judicial qualification commissions, the bodies that screen all new judicial appointments and handle discipline and recall of judges for cause; having three-judge panels on higher courts; removing immunity of judges from criminal prosecution, rather than judicial qualification commissions; and, perhaps most important -- and shocking to Western judges -- establishing term appointments and review procedures for the chairmen of courts, until now powerful Soviet-style bosses with excessive leverage over their subordinates.
The Putin and Kozak concern with accountability of judges is well placed. One would hope that it will result in a better public image of the courts, for, in Russia, as in other countries that have improved their courts, like Spain, there is a lag of public perceptions behind changes in reality. For example, a 1997 poll revealed that only 20 per cent of the public thought that they stood a chance of winning a suit against a governmental official when, in fact, the success rate for those who tried was over 80 per cent.
It was clear from other surveys that much of the public believed the stereotypes of judges as inefficient, arbitrary or corrupt, the last quality based on a handful of publicized incidents. As much as half of the public doubted that they could get fair decisions in court -- still, however, a rating better than what you would find in Italy or Spain.
What is the meaning of all this for Canada and its policies toward Russia? First, on a general level, it seems to me that in regard to our view of the Putin administration and where it is going we should avoid the overreactions of our friends south of the border and not let our appraisal of Putin's government be unduly shaped by our distaste for the war in Chechnya, politically motivated prosecutions against oligarchs or efforts to keep the media in line. It is important to see as well the efforts of the new president to develop a strong and effective state in Russia, without which there can be no real democracy or civilized market economy. We should welcome Putin's energetic commitment to improving his country and see this as making Russia potentially a better partner for Canada.
More specifically, as I argued at the World Bank a week ago, we should recognize that this is an especially good time for western governments and NGO's alike to try to help Russia address problems of its laws and its courts. By good fortune, Canada already has in place a project to help courts in Russia. It is called the Canada-Russia Judicial Partnership, a CIDA-funded venture in which I am a participant. It is run out of the Office of the Commissioner for Federal Judicial Affairs.
The project is offering help to all three of the main types of courts in Russia: the arbitrazh courts, the constitutional court, and the courts of general jurisdiction. The project is offering help to the arbitrazh courts, the hierarchy of courts that deal with business and commercial disputes, especially with the handling of tax disputes, which is the fastest growing area of new case load for those courts. It is offering help to the constitutional court, helping its judges learn from the experience of Canadian Supreme Court judges. Among other things, there are dialogues conducted with colleagues at law faculties. There is openness to criticism, something that is not the case among judges on the Russian constitutional court.
And, finally, the project is offering help to the courts of general jurisdiction. With those courts, the project is developing three model district courts in different parts of Russia. This is an innovative measure, in which Canada is ahead of other countries and the World Bank. We have developed an operational plan for these courts through close cooperation between Canadian and Russian judges and court administrators. The process has featured working visits of Canadian judges from three provincial courts and court administrators from Canada to the Russian courts, where we are doing the work, and return visits of Russian judges to the Canadian courts.
With appropriate input from all participants, the plan for the model courts has come to focus on five components. First, we want to introduce into the courts clerks to help Russian judges inter alia by assuming responsibility for office hours with the public, during which judges since Soviet days have given advice on cases that sometimes come back to their courtrooms. This measure is intended to save judges time, eliminate a Soviet era practice that leads to conflict of interest, and bring talented graduates of law faculties into the courts to create a new source of recruitment, in addition to the current streams from court secretaries and the police. Interestingly, two weeks ago the Kozak group endorsed the idea of clerks as something that should be in all Russian courts, an idea that the Canadian team has been discussing with top Russian judges over the past year.
The Canadian model courts will also include an experiment with tape recording trials -- ultimately, we hope to replace the often inaccurate and contested handwritten protocols -- and the introduction of computers to perform a number of functions, to enhance access of judges to legal information, to help judges write opinions more expeditiously and to improve case management.
I am open to any questions that you would like to ask about anything I have said -- and most of my points were very quick and not developed -- or anything about Russian government more generally.
Senator Austin: I have two questions. One is very particular and one responds to your general invitation. First, I wonder what you -- and you will be able to tell I am a lawyer when I ask this question -- can describe as the state of the law of evidence, evidentiary procedure, relevance in evidence, and legal onuses within the current Russian judicial concept of those ideas.
Mr. Solomon: Evidentiary law is a big and complicated subject. I do not know if I am prepared to answer on a technical level.
The most important point is that Russia is a country from the civil law tradition. To be sure, there were various overlays and distortions from the Soviet and socialist elements, I would argue -- for example, in criminal procedure -- but at its core Russia is a civil law country. The law of evidence in Russia bears a significant resemblance to what it is in France or Germany.
You talk about burdens of proof. There are certain tensions between what the law says and what tradition is. Obviously, there is a notion of presumption of innocence in the law. The burden is supposed to be on the state to demonstrate its case and not on the accused to provide the counter-argument. Everything depends on the actual dynamics and the balance of power in the courtroom, which might be something else.
Senator Austin: Under the old Soviet system, the courts were an extension of the power of the Communist Party. Has that mentality now gone, or is there still a debate or a discussion? Where is the connection, not between today's Communist Party and the courts, but between the administration of power at the executive level and the courts?
Mr. Solomon: There is a difference here between theory and practice. There are many brave statements about the autonomy and independence of the courts. Certainly, it is a principle that people are working for. The life appointments are very important. Indeed, I think they are responsible for the findings of poll I and a colleague conducted of 400 Russian judges across the country in 1997 that judges feel more independent than they did in 1991. I think that is true.
In Russia, "however" is where the important things start. There are lines of dependency, still, that are real. Not only are the courts not adequately financed but individual judges receive far too much of their pay compensation in the form of perks and special benefits, and are dependent on nobody else, at least on the chairman of the court, to help them get these things. A judge who does not play ball, a judge who is nonconformist, gets into trouble. The chairmen of the courts are also very interested in maintaining good working relations with local government, with the powers that be, because their support is necessary.
Even if you had all the structural conditions in place that you might want, mentalities can lag behind. At least a quarter of these judges worked previously as policemen or procurators. It is difficult for them to believe that a court is not an institution dedicated to the fight against crime and that their main job is not to work with those law enforcement people to ensure criminals get their due. They are told courts are supposed to be separate and independent, but then there is reality.
Senator Austin: On the general question, and I briefly gave you notice of this, we are looking at the subject from the point of view of the Canadian interest.
One of the areas where we may make a contribution -- or may not make a contribution -- is in comparative constitutional law and practice, federalism and the roles of different jurisdictional levels and how they relate to one another. Do you feel that this is an area where the Russian federation would welcome more activity on the part of Canadians? Do you feel we have anything to contribute?
Mr. Solomon: Both. I think we have much to contribute and many people there would like us to. There have already been statements to that effect from people in Putin's entourage in the last visit.
Russia has an awkward federal system, as I am sure you know. Arguably, far too many of its powers are in joint jurisdictions; there is much that must be worked out in operational terms. It is not just asymmetrical, which I do not think is a problem. Multinational federations such as Russia's should be asymmetrical. However, it is one where the asymmetries are fluid, too fluid, and often not transparent. I do not think treaty federalism is a good idea, although there were very good reasons in the early 1990s to go in that direction, in order to keep the country together, but I expect it will move away from that.
It is a federal system in which, for the last four or five years, power has been too much at the level of the subjects. The federal government became too weak. Obviously, Vladimir Putin is committed to doing something about that.
Canada has many areas in which it can help Russia: the experience of how to make a federal system work, how to conduct intergovernment relations, how to operate in a civilized way relationships between the levels of government.
Harmonization of laws is an area in which a group of us might provide help. It is a concept of a project to work with one of the federal districts on things that matter to them.
We were thinking about harmonization of laws and how the Russians do it. So far, at least on the surface, it is a pretty crude process. Harmonization of laws means that bureaucracy, ministry of justice people, say, go in and try to identify laws of lower levels of government that do not match with higher ones and say, "fix it." Of course, people in Tatarstan come back and say, "You know, we have better laws sometimes." "Maybe we should do it the way they do it civilized places like Canada."
In other words, we should negotiate; we should discuss. Harmonization should be a process of give and take. A method like that of dealing with a problem is the kind of thing we can easily help with. That is just an example.
Senator Andreychuk: The complaint of many of the businesses that were entering into partnerships in many cases with Russians was that it was not so much that the laws were not there -- in fact, they had been developed -- but that it was difficult for an outsider to get into the area of private law and enforce a contract, because all these other social concepts and how they did business in the old days continues.
Mr. Solomon: Absolutely.
Senator Andreychuk: Has the judicial project in which you have been involved made a difference to date, or is it really a long-term concept?
Mr. Solomon: Enforcement is a recognized issue in Russia. The people who used to be responsible for enforcement, the judicial enforcers, were upgraded, made into a bailiff service, given more money, given the chance to hire people who were better qualified, and given incentives to improve the enforcement process. They were given monetary incentives, pieces of the action. Apparently, it is doing well.
It is difficult to interpret numbers, these artificial averages. If someone tells you they have gone from 40 per cent of commercial decisions implemented to 60 per cent, what does "implementation" mean?
All the same, there is no question that more revenue is coming in. There seems to be some improvement. I do not think we have reached a position where Russians trust institutions, where Russian business people as a rule would want to give up the personal connections that are the basis of their whole operation. People go to court sometimes knowing that the decision probably cannot be enforced through the court system, but wanting the decision in any case before they turn to some private enforcement mechanism.
The private enforcement is actually a fascinating subject in and of itself. I used to imagine that in hiring people to enforce, I should picture a group of Mafiosi experienced in the art of violence who made the point that way. Much of the time, it appears the mechanism is quite different. The people who handle private enforcement have access to information. They are often ex-KGB people. They get the goods on the firm that owes money and then they simply confront them and say, "Look, we know you have an extra account in another region. We know you have this portion of your business that is off the books. We will let the tax police know what we know if you do not pay your debt." It is actually blackmailing people or extorting people into paying debts that they already owe.
The crux of your question, though, is this: How soon will Russia become a civilized business place to practice business? Not that soon. It is a long process. One of the reasons that some people do not go to court is that they are afraid that some of the illegal things they do vis-à-vis taxes will come out in the open.
How do you get a situation where Russian businesses do not feel they have to avoid taxes? You would have to have a tax system that was not confiscatory. You would have to have a system where the sum total of all the taxes that a business might face did not add up to 130 per cent of revenue, which is one reason why the Putin government is paying so much attention to tax reform. Changing the tax system to the extent that is possible involves not only the federal level but also the regional levels. Russia has ended up with this incredible tax system almost by default. Every level of government looked around the outside world where they could find a model that was good for it. Everyone found something and would go for the tax that would give them the most money. However, when you add those up, you get this result.
People from the West can conduct business in Russia, but they should go in understanding that it is quite a different world and get lots of help and advice.
Senator Andreychuk: The problem as I understand it, having worked in the judicial areas, is obviously their mentality. However, I will not go into that now. When they were looking to change their judicial system, they were flooded with projects from the United States, Canada, Germany, France and the U.K. Not only were they picking and choosing in all of those federations, but also there was not a concerted effort and a coming together of all these good works and good offices for judicial improvement.
Is there now some coordination to assist in getting all of this to bear fruit in a more positive way than it appeared to be? At one point, two similar projects were being run but they were really displaying two different systems from two different countries.
Mr. Solomon: Not all of our Russian partners want the different foreign groups to know about each other. They do not always cooperate from that point of view. However, we are doing better. There are regular meetings of what is called the donor community people in Moscow. I assume that that occurs in Kiev and in other places, too. More important are the informal social contacts that are taking place. The more that people work on more than one project and have connections to them, the better it is. There is improvement, but there is still a way to go.
There were some problems at the beginning with design, with who should do what and what should be done. The Americans got very excited about the jury and put a lot of money into it, which raised false expectations and made it harder to spread the jury initially. I have heard encouraging words, though I do not know if I quite believe them yet, that Putin is committed. In their final report, to be delivered in the middle of April, the Kozak group will provide a hard schedule for the development of the jury trial in all regions of the Russian federation. However, the people in the bureaucracy do not want it and the people in the courts do not want it. It is not popular. All the same, it may well happen. A lot of attention has been paid to the arbitrage courts because of the business connection. I think they have received more than their fair share. That is a personal belief. They can use it, but now it is more important to help the regular courts as much as possible. Those are the ones with which Russians have the most contact.
The view of the courts in the public mind depends on what happens when you go for a divorce or when you go for a simple property dispute, or whatever. Everyone should be paying a lot of attention to this new layer of the court system, for example, the justices of the peace courts. This is a whole new layer. They will not be amateurs or lay judges. These are full professional judges. As we speak, about a quarter to a third of them are already in place. They will take over all administrative cases -- that is, the equivalent of our provincial offences; about 60 per cent or more of civil case load; and about 20 per cent of all criminal cases with a maximum penalty of two-year imprisonment. They will be very important. Yet, who knows? Salaries are paid by the federal government but the support of the courts is by the regional level.
Senator Andreychuk: That sounds familiar.
Mr. Solomon: Do these kind of hybrid institutions sound familiar? They may vary considerably from one part of the country to another and have different standards. With brand new institutions, it is a great opportunity to go in and help.
Senator Graham: The question of appointments follows on that. Who makes the appointments?
Mr. Solomon: The simple answer is that they are all made by the president -- that is to say, not a justice of the peace, but all the rest. If we are talking about judges in the regular court system, they are appointed by the president, with an exception. The constitutional court has its own system. Judges are nominated by the president and approved by the upper house, in effect their Senate, the federation council.
For a nomination to get to the president's desk, it goes through a whole series of hoops, starting with the judicial qualification commissions that must give exams, review of the credentials and ensuring that the person does not have a criminal past. At this point, the nomination then goes -- and this is since 1996 -- to the regional legislature. It is vetted there, which is something that may not be a good idea. In fact, the Kozak group recommendations include repealing that section of the 1996 law in the court system, which was put in because they needed to pacify the governors and presidents at that point who wanted a bigger piece of the action. The nomination then goes to the Supreme Court and is reviewed there. It then goes to two different offices within the presidential administration and, finally, the president makes the appointment. This process is repeated for each new appointment. You get your initial appointment for three years, probationary, and then you get your tenured appointment.
Suppose you are ambitious and, you want to go further, for example, to become chairman of a District Court. It is the same procedure. To get an appointment on a regional court, it is the same procedure. To become chairman of a regional court, it is the same procedure. To become a member of the Supreme Court, it is also the same, and so on. That is where it is bad to have the vetting of the regional level governments. Obviously, a judge who makes decisions that are unpopular with politicians -- local and regional -- could be vulnerable in facing scrutiny for these subsequent promotional appointments. I do not think it affects the initial ones much.
Senator Graham: When I was coming into the room, you had just begun your testimony. In the early part, I heard you say -- and I want to know whether I heard you correctly -- that they now have a system of life appointments.
Mr. Solomon: Absolutely. That is what I call the tenured appointment after the first three years. They introduced this in 1992, and it holds. They may modify it. At the moment, it is life until voluntary retirement. They are talking about setting a retirement age of 65 for judges in the lowest court and 70 in the higher ones, which I do not think affects judicial independence.
Senator Graham: I think with the constitutional court judges, it is now 70.
Mr. Solomon: The constitutional court is a completely different system; it is very complicated. They have just changed the law to replace two previous systems, one for the judges appointed before 1994 and one for those after. A judge is now a term appointment. I think they settled for a 12-year appointment with a mandatory retirement at 70. Different judges were under different systems. Unfortunately, at least I think for the Russian court, one of the best judges on the court, Tamara Morshchakova, is being forced to retire now. She was appointed in 1991 in the first wave. That was for life with a retirement age of 65, and the arrangements have not reached her or people appointed before 1994. She is a brilliant judge and a great loss.
Senator Graham: Late last fall, the world watched with fascination the presidential election in the United States and the unfolding events in Florida and how they affected the Supreme Court of the United States. There were questions raised about the impartiality of justices in the United States. Keen observers in Canada would boast that that would never happen in our country because our justices are clean and totally impartial, which I believe. I think we probably have the best justice system that I know of in the world. In looking around for a model justice system that Russia would copy in their own country, under the new system, how would Canada stack up in comparison?
Mr. Solomon: From the point of view of quality of justice, very high. Russian judges, when they come here, are very impressed and always find things they want to emulate. I think, though, that at least for the constitutional court the primary model is Germany, and that makes sense. It is a free-standing constitutional court in a federal system in a civil law country, which, after all, Russia is. The law in the constitutional court in Russia is modelled more after the German one than any other. There is no question that all Canada's courts offer a great deal. We find that when we bring judges here they are very favourably impressed.
Senator Grafstein: I find your testimony very interesting. As a committee, we have to draw some conclusions, as one of my colleagues said, about the Canadian interest in the study. To be involved in uniform law exercises or harmonization exercises in Canada takes decades, even under our rule of law, and to hope that in the short-run, the next decade or so, there will be massive progress on uniform law movements or harmonization law movements might be optimistic.
We have a harmonization bill before the Senate presently that took years to develop, to harmonize the civil law and the common law in Quebec. We have been trying to do that since Confederation, and finally we have before us the first proposed statute. These things take time, even in Canada. In 1965, I was involved in trying to develop a special study of a uniform company act in Canada. I thought it would take a year or two, but it has taken the better part of two decades, and it is still not done. Harmonization of law is very long and laborious. In the long-run, we will be dead, so we have to worry about the reasonable short-run. We start off with a good tale to tell here, in that Putin is a lawyer, or trained as a lawyer, so at least this president starts with a legal mind.
We must give guidance to Canadian companies and banks that wish to invest in Russia so that they find themselves in a situation where they have some security in their transactions. We have before us an excellent paper by the European Bank for Reconstruction and Development. That paper states, among other things, that secured creditors rank only third in priority; that assets and debts described in general terms cannot be encumbered; that it is not clear to what extent a changing pool of assets can be taken as security; that bona fide purchasers are not protected from acquiring encumbered assets. The traditional, simplistic, secured transactions, which are at the heart of commercial law, appear in many ways to be absent, or in evolution. Laying aside what the court system will do, even the law is uncertain.
Is there no way of short-circuiting this in the short run by Canadians relying on international mediation provisions? Geneva has a very highly developed private-law mediation system. If Canadian investors or Canadian banks seek to invest in what was the USSR, within the federation, they can, in effect, gain at least some security and perhaps some leverage by getting their partnership or the company in which they invest to agree to be subject to an international mediation provision, which is clearly set out in New York.
I am sure our staff can get us those well-established various mediation processes -- underutilized but well-established.
There is no problem with the judges. In fact, to make it binding on the parties, it can be done by contract. Thus, we avoid, in the short run, many of the problems of a legal system in transition, problems that do not give the normal investor any sense of security in the event of a dispute, whether it is minority rights in the company act or security of property.
There is also the whole question of the private property.
Mr. Solomon: Absolutely. That is a huge question.
Senator Grafstein: There are no mortgages as a result of this. Quite frankly, it is my sense that corruption in these institutions in these countries relates to the fact that there is no rule of law. Absent clear rule of law, corruption is endemic. Is someone advising and looking at this? Have you looked at this as a quick alternative for Canadians participating with Russian counterparts that might be legitimate businesses but still require the test of enforceability?
Mr. Solomon: This kind of thing is done. The truth is, anyone going in and doing business in Russia must write into the contract various things that we might not write into a contract here. You must anticipate disputes and specify mechanisms of dispute resolution, whether you use international arbitration or some Russian mediation service, and there are some pretty good ones. Indeed, the World Bank has been promoting ADR, which is fashionable. I often wonder whether we should not get the courts in shape before you do the alternatives. However, there certainly are options.
I would not want to make a blanket statement. It depends on the particular firm and what they are doing, who the Russian partners are and what is appropriate. Any Canadian business that is going to Russia should work closely with Canadian, western lawyers who know the Russian situation well. There are two or three. It goes without saying there are two or three Canadian firms with Moscow offices, Macleod Dixon, Gowling and so on. They have people experienced in these matters; they have been through the hoops and know what the best approaches are.
Senator Grafstein: Let me move to the next question. The good news for us is that the federal law and federal institutions there are growing very quickly. Does a citizen or an investor in Russia have the choice of either the federal, provincial law, regional or district law in the same way that they do in the United States? There seems to be a creative tension between the two. In the United States, the federal law has the power to override.
Is there, in effect, a federal override both on the commercial side, to a certain limit, and on the criminal justice side?
Mr. Solomon: The criminal law is entirely federal. I am trying to think if there is any commercial law that is not federal. Laws pertaining to land often involve joint jurisdiction. Until now, there has been no federal law because the politics has not allowed it. Into that vacuum we find land laws and the different subjects, widely varying in their nature.
If I were an investor, I would be very worried about dealing with land in Russia, because I would say, "Well, should there ever be a federal law, it would definitely take precedence." Therefore, I would not know whether the particular land law that I was dealing with would last.
Putin and company are now preparing a new federal law. Apparently, they have decided to take the easy way out and make it a framework law, a law that is so broad that it allows each of the subjects to have widely differing laws, although there may be some core principles.
First of all, the court system is a federal court system. The only courts that belong to the subjects are these new justice of the peace courts and the charter or constitutional courts of the subjects. About 15 of them have them. Exactly what their jurisdiction is and how they connect to the federal constitutional court is a very murky subject. I do not think they represent real alternatives.
Curious conflicts arise where there is no federal law but where there have been presidential decrees with normative content. I have discussed this with my lawyer friends in Moscow, including people on the constitutional court. Which takes precedence, even theoretically? If you are in an area of joint jurisdiction, there is no federal law. What takes precedence -- a presidential decree or a piece of legislation from the subject government? There is no clear answer. A judge from the constitutional court said to me, "That is a very interesting question. Maybe we will deal with it some day. We do not know how it will come out, how we will dot the i's or cross the t's."
Senator Grafstein: By the same token, if there is that power at the federal level it allows the presidential power to be moving much more quickly than they could in terms of harmonization of uniforms to override a provincial law.
Mr. Solomon: That is true.Then you have the question of implementation. Do not imagine that presidential decrees are implemented any more readily or easily than laws of any kind. It is very tricky.
The presidential administration has a special department that monitors the implementation of presidential decrees. They have a journal, which I read from time to time, and they come up with numbers, too. They do not do very well. Many presidential decrees are just statements that people then ignore.
The Chairman: You spoke about land law, which I presume would have to do with titles and things of that nature. We have not got there yet. We are working on getting the kind of witness that we think will be useful to the committee. I suppose that until the land title question is dealt with the agriculture question cannot be dealt with. I do not know that. I do know that in eastern Germany people have often bought those big state farms. I suppose those kind of sales or title changes cannot be contemplated until the legal system is sorted out regarding land title; is that right?
Mr. Solomon: There have been changes in the legal status of collective and state farms. Most of them have become some kind of trusts or concerns. They have become quasi-private companies, although very often you will find that the owners are huge state shares. The company is one thing and the land is another. I would draw that distinction.
If you are not from the rural world and you are thinking of going into commercial farming, you might well be concerned about land and who owns the land. That is part of the package.
The Chairman: I realize that we are talking about Russia, but I have been reading some Ukraine statistics from 1910 when, in some grains, they produced between 70 and 75 per cent of the world's supply. I suppose it may well go back to that if they ever get the various title problems worked out. I know that is not what we are speaking about this afternoon, but one cannot help but think that that is a problem in Russia as well.
Senator De Bané: You have pinpointed several flaws of the legal system in Russia. I am somewhat surprised that despite all those flaws you are still optimistic that Russia will finally get its act together.
As you know, the most fundamental issue in the legal system is the tension between the rights of the individual and the rights of the state. That country, of course, has no habit of having to resolve that issue.
As you also know, a legal system in a democracy can work only if there is voluntary compliance. If Canadian taxpayers decided not to obey the law, we do not have a system that would enforce that. As long as only 1 or 2 per cent attempt to disobey the law, then we can enforce our system, but if all Canadians chose not to do so, that would be different.
We know from your studies and from others that everyone in Russia realizes that there are two standards, one for the elite and one for the ordinary people. That is still widespread.
Finally, what makes me very pessimistic is that in the Latin countries, when things go bad, they decide to draft a law, hoping that, by a sort of miracle, reality will conform to a piece of paper. In the Anglo-Saxon way of thinking, they have realized that the best protection is the mentality of the people. Although there is no bill of rights in the United Kingdom, individual rights are more protected than in any Latin country because through the centuries this has become very important.
Russia has nothing of that. As you said, they import laws made in other countries, while laws are of course supposed to reflect the values of a country. Despite that, you still seem to be optimistic. I think it will take generations before their system becomes credible. Then you will have demand. You say that demand is very weak. In my opinion, it will remain like that for generations.
Mr. Solomon: I would not disagree that the time line for legal transition, for moving from a world in which law is more of an instrument of rule than anything else and there is not much defence of rights and so on, to a system which is a law-based state, a world in which government functions according to law and in which institutions are more important than personal connections, is surely a long-term process.
I would not say that Russia has nothing to build on. I think there was something of a liberal intellectual tradition in the late czar's period, although it was not dominant. There were some wonderful legal thinkers in the late nineteenth century. There are other things that are not well known. The civil cassation department of the senate in the late 1880s and 1890s was beginning to act like a constitutional court. It rewrote family law through its court decisions.
However, I agree with you. Countries that succeed in political and legal transitions usually have had one or two earlier periods of failure. The country that is probably doing the best in building democracy now in the second half of the twentieth century is Spain. I am getting more and more of a sense that the Spanish courts have developed pretty well too. The constitutional tribunal in Spain is very respected. It has made almost 100 decisions related to federalism issues in the last 20 years, and I am told that the people observe them, which is amazing.
A question that I want to write about is how to implement a successful legal transition. My colleague Kathryn Hendley has been writing interesting things about the problem of demand for law, which is clearly an important thing. You are not going to have strong and effective law until important elites think it is in their interest to have laws obeyed. You must cross that line.
We are having a debate in our field, generated in part by Ms Hendley's work, about the relationship between demand for law and supply of law and legal institutions.
Ms Hendley is pessimistic about the importance of supply in influencing demand. Some, including myself, think that supply may make a difference, too. If you have better functioning courts and better laws, you open up a possibility. I would say that, if not a necessary condition, it is a useful condition, but surely not sufficient. These are big issues. You do not change courts overnight, speaking only of the court side.
Even in Russian history, using the judicial reform of the czar's period as an example, in the 50 years from 1864 to 1914 they did not fulfil their whole agenda. They accomplished some things and others they did not. It is a question of whether the glass is half empty or half full.
In the post-Soviet period, the courts, as an institution, are doing well. If you looked at the police or local government, you would be much more depressed. At least there are some improvements in this area.
Senator Graham: You mentioned the Canada-Russia justice partnership, which is funded by CIDA and of which you are obviously a prominent associate. Can you offer this committee other suggestions through which Canada might be of greater assistance in helping to develop and assist the justice system in Russia? Are there other things that our country or our institutions can be doing?
Mr. Solomon: There are always things. It is partly a matter of scale.
Senator Graham: One of the prior witnesses suggested scholarships.
Mr. Solomon: Anything involving education and training is important. There is nothing better than bringing people over here. I agree with that 100 per cent, and that applies to all areas. At our university, we already have a small stream of very talented Russians, Ukrainians and others from the former USSR area who somehow manage to come and do masters degrees and Ph.D.s.
Senator Graham: Did they go back?
Mr. Solomon: Some will and some will not. You never know. I would expect two thirds to go back and one third to drop out. If you get two thirds to go back, you have done well. That makes a tremendous contribution. There is no question about that. Any programs that bring people here for study and training are beneficial, particularly if they are serious programs. It is nice to have study tours, to bring over groups of judges to observe and attend conferences, but that does not have the same impact as longer-term initiatives.
Senator Grafstein: I find it remarkable, when listening to witnesses speak about Russia and Poland, to hear that there is no institutional memory dealing with law. It just occurred to me, for instance, that it was Alexander III, I believe it was, who convoked a conference 100 years ago to --
Mr. Solomon: I believe it was Alexander II.
Senator Grafstein: Was it Alexander II?
Mr. Solomon: Alexander II did the judicial reform. However, you are talking about something else.
Senator Grafstein: I think there was one Alexander II who was assassinated. He was a liberal. Then there was the third. Whoever the czar was in 1895, he was the one who convoked the international conference to establish the Geneva Convention. When you think about it, that was as far-reaching a law reform as we have had in this century. It was the progenitor of many other things.
It strikes me that at least when we are addressing the Russians we should give them the courtesy of reminding them that there are deep liberal traditions built into Russian history pre-1914. The same holds for Poland, for example. The best constitution in Europe was the Polish constitution of 1774. It pre-dated the American Constitution.
Mr. Chairman, I think we must be fair when we are analysing these things to examine their roots. Obviously, after 1917, the government did everything in its power to eviscerate the liberal history and tradition of Russia. It would be useful to look at this historically, to put it in a better perspective.
The Chairman: Senator Grafstein, this is a subject dear to my heart, as the researchers know. We are working very hard to get people who can give us this historical context.
Mr. Solomon: Russian jurists and political scientists -- you can even speak of such a category now -- are very interested in retrieving and remembering the tradition you are talking about. Even if we looked at judicial reform, the jury trial as an option for the most serious crimes and justice of the peace courts are two institutions that exist that were part of the 19th century landscape. The people who promoted them presented them as Russian institutions. I was involved in a small working group at Harvard back in the early 1990s where we were discussing a draft of the law on the Russian jury. To some of the people who came over, including one of the principal authors of the legislation, we said, "We do not think this is a good idea. You have a majority jury of this type. You have various things in there that are strange or will not work out well." The answer we got is, "This is the Russian jury. We are doing it the way we did it. We will remember our tradition." Of course, I think that was important in selling it politically, too. We are not just importing a western institution. I agree with you.
If any of you would like to ask follow-up questions by e-mail or telephone, I am always there. It is not official or on the record, but I would be happy to continue this dialogue.
Senator Grafstein: Historically, it is interesting to note that when the Russians were pushing for the Geneva Convention I think it was the American Senate or Congress that refused to concur because they did not want to give up sovereignty. The Russians were farther ahead at that time than the Americans.
The Chairman: I want to thank Professor Solomon. As Senator De Bané said, you have given an optimistic approach, as have other witnesses. Without overstating it, there has been something of a tone of optimism in the evidence we have heard.
One of the difficulties we have, and members of the committee may not be as aware of it as I, is that there are "Russia" people and then there are Soviet people. We do not really want Soviet people; we want Russia people. There are not as many as you might think. It is quite a different business. What you have said has certainly interested me. It has been much more positive than I might have expected.
The committee adjourned.