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Analysis From Washington -- Yeltsin Land Decree Built on Sand

Washington, March 22 (RFE/RL) -- Boris Yeltsin's decree last week allowing for the buying and selling of land violates the Russian constitution and exacerbates yet another conflict between him and the Duma.

Many in both Russia and the West are celebrating the Russian president's action as a major step away from the communist past, but the way in which Yeltsin has taken it raises serious questions about the legitimacy of democratic reforms introduced by non-democratic means.

The December 1993 Russian constitution -- which Yeltsin himself helped write -- explicitly gave the legislature and not the president the right to determine whether and how land could be sold. In 1995, the Duma began to consider a land code but failed to agree on how land should be transferred or sold.

This year, the Duma rejected a Yeltsin-originated draft that would have allowed the buying and selling of land, instead of the long-term leasing that many in the Russian legislature preferred. When that happened, Yeltsin decided to act unilaterally and introduce the buying and selling of land by decree.

While widely greeted as a necessary step toward a market economy, Yeltsin's action raises three important and disturbing questions:

First, can such a decree be sustained when it so obviously flies in the face of the provisions of the Russian constitution? The Duma has already taken Yeltsin to court on this, but even if the court rules in Yeltsin's favor -- something it will likely do -- the uncertainties of this situation will reduce the confidence of both buyers and sellers in any transaction. Indeed, many of them may conclude that that which can be introduced by decree in contravention of the constitution can be eliminated by decree just as easily. And so this action however well-intentioned and useful will serve to undermine still further any faith in value of constitutions and laws.

Second, can democratic and free market reforms be introduced by non-democratic means? This is not one question but three: Can democracy be introduced by non-democratic means? Can free markets be introduced by non-democratic means? And can either so introduced be sustained by other than democratic means?

The answer to the first two questions is certainly yes. Indeed, in one sense, all major political shifts will entail non-democratic elements; that is, they will take place without the existence of institutions and values that would allow them to be ratified by the majority of the population. But the answer to the last question is very likely no.

If elites want to have the freedom that democracies and free markets allow, they must at some point allow that freedom to be extended throughout society and sustained by institutions which draw their legitimacy from the people. If the elites are unwilling to do so and insist on ignoring the popular will as expressed through institutions created by democratically ratified constitutions, they will not only undermine what they claim to be introducing but will inevitably continue the very authoritarianism that they say they are fighting.

And third, and this is a question for more than just the peoples of Russia and other formerly communist countries, is democracy ultimately about procedures that allow the popular will to be expressed or is it both defined and justified by a set of specific substantive outcomes? Western liberal democracy -- the system that has given more freedom to more people than any other political arrangement in history -- generally rests on the belief that unless procedures are followed, outcomes will be tainted. But there are all too many in the West who are prepared to sacrifice that ideal in the name of specific outcomes especially when it comes to the political transformations in Russia and the former Soviet states.

Indeed, far too often, Western officials and commentators have suggested that the only thing that matters in Russia and her neighbors is the outcome to any particular issue. In one sense, these observers are right: there are preferable choices that perhaps the governments involved could not make if they relied on the procedures of their own constitutions. But in another and more profound sense, this perspective is fundamentally wrong: Even if the right choices are made today, if they are made without the legitimation provided by popularly approved constitutions, not only the decisions themselves but democracy as well will ultimately be subverted.

Consequently, let's not give three cheers to the latest Russian land decree just yet. Everyone should welcome Russian steps toward a free market in land, something that country's economic recovery almost certainly requires. But no one should fail to care just how those steps are taken.