We still do not know if Mikhail Gorbachev will have to appear before the Constitutional Court when he gets back from Germany. Earlier this week it looked as though he might be off the hook, when Sergei Shakhrai, the main lawyer on the Yeltsin side, said his presence was not required. Shakhrai argued that the case against the Communist Party for continuing to interfere in state matters even when the constitution no longer sanctioned such behavior was clear enough.


A parade of earlier witnesses had produced plenty of evidence that the party was still deeply involved in government. They included many of Gorbachev's former Politburo colleagues. Some of them, it is true, wanted the party to have been even more involved. Their complaint was that Gorbachev was pushing the party to the sidelines, what they call his "betrayal".


In spite of Shakhrai's statement releasing Gorbachev, the court's chairman, Valery Zorkin, is keen to maintain its authority. Annoyed at Gorbachev's defiance of the court, he has not yet given the ex-president the green light to stay away.


The whole affair has done a good deal of damage to Russia's efforts to become a "law-based state", as Gorbachev often described his goal. It is hard to know which of the two presidents has behaved worse. Having embraced the notion of a constitutional court as part of the essential separation of powers in a democracy, Gorbachev has been trying to ignore it. It is not a very good example to set. His claim that the court is conducting a "political trial" carries little weight. He is wrong on the noun, but right on the adjective, but so what?


Almost by definition, everything the court does is political. That is what it's there for. Its job is to decide whether executive decrees and parliamentary laws are, in line with the constitution as contemporary experts see it. This is inherently a political judgment, as is clear from the history of the U. S. Supreme Court and the constant debate over whether it has a "conservative" or "liberal" majority. What seemed unconstitutional in 1952 may be re-interpreted as constitutional in 1992, and vice versa. This is fair enough, since -- to quote Gorbachev's favorite phrase from Greek philosophy -- "everything is in flux".


As for Gorbachev's use of the word "trial", this is inaccurate. He would appear as a witness, not an accused. After spending several days in the court over the last two weeks, I can vouch that the atmosphere is calm and dignified, the questioning usually waffly and emotions kept under tight restraint. Zorkin is the only man who ever gets angry -- when lawyers stray off the point.


Gorbachev would not be standing in a dock. He would have a desk and chair. He could ignore the questions, or turn them aside skillfully, as Alexander Yakovlev did. Or he could do what he is good at and talk at even greater length than the lawyers. What he might say, and people would find it hard to deny, is that despite all his zigzags and occasional efforts to reverse the process, he did more than any other living Russian politician (until this case) to permit democracy here. Like other parents, he may have lost control of the child, but democratization was Gorby's baby.


Yeltsin's behavior in this case has been deplorable. Issuing a decree to take back most of the Gorbachev Foundation's buildings may have been legal. He gave Gorbachev the use of the buildings in December for an unlimited period, so in theory he had the right to take them back. But it was hardly a civilized way of acting. Why didn't he inform Gorbachev by letter or, better still, at a private meeting, as befits the dignity of an ex-president? Why didn't he give him time to find alternative premises, and some sort of explanation of the alleged need to rush things? Instead, he sent in the police. When Gorbachev telephoned Yury Petrov, Yeltsin's chief of staff, that morning, Petrov said he had first heard of the decree on the radio. What kind of an administration is this?


Even the Constitutional Court itself does not come out of the sad business completely clean. Why did it take five months to accept the Communist's petition that Yeltsin had acted unconstitutionally in banning the Soviet Communist Party last November? The petition was delivered in December. The court accepted it only in May. Was it because they would have had to rule that President Yeltsin was wrong? Fortunately, a counterpetition appeared which claimed that the party itself was unconstitutional. This muddied the waters enough for the judges to step in. State-based law or law-based state?


Jonathan Steele is Moscow bureau chief of the British newspaper The Guardian.