LEGALLY, LITHUANIA'S CASE IS OPEN AND SHUT By Vytautas Landsbergis President of Lithuania There is no shortage of advice for solving the Lithuanian question these days. But to solve the problem, one has to understand it. The latest trend, in both Soviet and western circles, is to urge "a fair and objective" way out of the stalemate for all parties concerned -- the Soviet Union, Lithuania and the western governments, who are under public pressure to support our drive for independence. However some of the offered solutions are neither fair nor objective. Soviet spokesmen argue that the unruly Lithuanians should respect and follow orderly Soviet constitutional procedures. They concede that the Lithuanians are entitled to independence if they want it. But as a "constituent part of the Soviet Union," the LIthuanians must abide by the procedures of Soviet law that could make their independence possible. The basic flaw in this argument is that Lithuania is not seeking to establish independence, it is working to restore an independent state that was illegally suppressed by a foreign power and its army. It is not calling for secession from the Soviet Union, because it never legally joined it. This is not just a legal nicety, but the basic and nonnegotiable premise of our March 11 declaration of independence. When Soviet spokesmen speak of the right to secession, this right does not apply to Lithuania: it is not legally tenable. The Baltic countries, Lithuania included, have always maintained, and the world recognizes, that they were illegally incorporated into the Soviet Union. The Congress of People's Deputies of the Soviet Union last December itself declared illegal the document that gave birth to the Soviet occupation: the Molotov-Ribbentrop pact. Under Soviet law, Gorbachev says that Lithuania's right to self-determination can be realized only through the mechanism he approves and provides. After all, we are told, he is not denying our right to self-rule, he is merely contesting the pace of secession. We don't believe he has any intention of letting Lithuania or the Baltic states secede - legally or otherwise. The law gives the Congress of People's Deputies - to which,it must be recalled, Gorbachev appointed himself and 99 of his Communist colleagues -- the right to veto secession by any Soviet republic, even if two thirds of its registered voters express their desire for independence. Though we are not bound by any Soviet constitution, our actions of March 11 were fully consistent with a constitutional provision that provides each Soviet republic's legislature with the right to secede. Moreover the Soviet constitution states that the USSR is a voluntary union of states. If the USSR enjoyed a system of checks and balances similar to the U.S. system, along with an independent Supreme Court that could rule on the legality of decisions by the Soviet legislature and executive, then a "Soviet SUpreme Court" would approve the restoration of independence in the Baltic states because their forcible incorporation contradicts the "voluntary union" clause of the Soviet constitution; and not permit the retroactive application of punitive law. But that -retroactive application of a punitive law - is precisely what the Congress of People's Deputies has tried to do by declaring our March 11 vote invalid because it contradicted a secession law that did not even exist on March 11. The April 5 secession legislation adopted by the USSR's Supreme SOviet requires that, to secede, a republic must conduct a referendum. Since no referendum was held in 1940 to determine whether we wished to nullify our independence and to join the USSR, why is a referendum needed now to determine whether this forcible incorporation should be ended? We have no illusions about our economic dependence on and interrelationship with Moscow, but we find it hard to understand why in this day and age, a master-slave relationship should continue or even be encouraged as a solution to the problem, surprisingly enough, by some western friends. Our elections of February 24 were democratic and legitimate. Pro-independence candidates proposed by the Sajudis party swept the elections under the campaign slogan of democracy and independence for Lithuania. Sajudis' political platform differed from its main opponent, the breakaway Lithuanian Communist Party, in that it advocated complete political independence as soon as possible with normal, diplomatic relations with Moscow on equal footing, whereas the LCP leadership still spoke in indeterminate terms of Lithuanian sovereignty "within the USSR." In addition to elections, the will of the Lithuanian people has been expressed many times at mass demonstrations and it at least two major petition drives: In 1988, 1.8 million out of a population of 3.5 million rejected Soviet constitutional amendments that restricted the republic's sovereign rights. And last year, 1.6 million called for the renunciation of the Molotov-Ribbentrop pact and the withdrawal of Soviet troops from Lithuania. In light of these political realities, how can we possibly plan and decide our destiny by Moscow's rules and Moscow's terms? We cannot brush off our political mandate. Moscow has expressed its displeasure in recent weeks with a barrage of verbal and physical threats, blockades and other acts of force against our people. If the Soviet Union continues to use force to crush and smother Lithuanian independence, if Gorbachev attempts to keep Lithuania in the Soviet fold as a hostile captive, we will all lose. He will prove that perestroika is a collection of failed policies and not a genuine transition to democracy. But if Gorbachev extends democracy to his own backyard and recognizes the democratically elected government of neighboring Lithuania, if he presides over the peaceful dissolution of the last living empire on this earth, if he deals with us as equal, friendly partners, we will all benefit. And he would take his place as a great man in history. The real problem is not Lithuanian independence, but how Moscow views itself. Our vote for freedom is forcing Moscow to take a stand - for democracy or for preservation of the "holy" Soviet empire. Instead of facing the issue head on, the Soviet Union is focusing on a little antagonist, which was never an antagonist to begin with. In this pitifully unequal battle, Moscow is its own worst enemy. Translated by Ginte Damusis. Printed in New York Newsday. April 27, 1990.