Ukrainian politics: political technologies overrule the right
12.12.2001
The Constitution of Ukraine of 1996 absorbed most international standards concerning human rights, which is testified by Part II that stipulated a broad field of democratic rights and freedoms of man and citizen. Yet, any rights and freedoms become real only when they rule of the activities of all state bodies, when efficient legal mechanisms exist for their guaranties, provision and realization. Unfortunately, in the real life, one often observes substantial difference between constitutional norms (even the best) and everyday practices. This is caused by the fact that state bodies by the initiative of some political forces are not so occupied with the problems of citizens’ rights as with creating the illusion of their extreme and fruitful efforts and shaping their attractive political image through creating artificial problems. For instance, mass media lately publish the materials of the discussion about the possibility of creating the coalition government in Ukraine. Soon this question transformed from an abstract theoretical idea to rather concrete political demands of a categorical kind (to form the coalition government). These demands are addressed, what is amusing, to the government itself, to be more exact, to its head. One cannot help thinking that some political forces, incapable of constructive suggestions about the cardinal improvement of the political, social and economic situation, efficient guarantees of constitution rights and freedoms, do their best to deviate the attention of the public from urgent problems. Unfortunately it often happened in Ukraine.
Some time before politicians trusted on the public the so-called Constitutional Treaty, which in the final count was signed, and for a certain time it became the juridical fixation of the political compromise. But it could not serve a greater role. Soon various political forces began, when it was profitable for them, refer to different parts of this document, in other cases they preferred to refer to the Ukrainian Constitution of 1978 that at that time was still officially operative. As a result, the Constitutional Treaty could not play the role that was expected, and only postponed the development and adoption of the new Constitution. Because of this everybody suffered: Ukrainian citizens and all our society, for important intellectual forces were dragged into endless discussions on the main positions of the Treaty and then the Basic Law instead of developing the needed codes and other legal acts. The precious time was hopelessly wasted.
This destiny may await the ‘political agreement’ (or ‘political memorandum’) that is being prepared by the working group consisting of MPs and representatives of the government. The obvious utopianism of the ‘political agreement’ is confirmed by the facts that first, signing it directly contradicts the Ukrainian Constitution and secondly, its authors support incompatible views concerning not only its content, but also its subject, conditions and procedure of its signing. One must not be a prophet to predict the further development of events. Even if the agreement were successfully signed soon, the problem of its realization would arise. ‘Political bargaining’ will begin among various political parties and the Prime-Minister for the portfolios in the government and in local executive bodies (which contradicts the Ukrainian Constitution). Certainly, the Ukrainian President will not stand aside in these squabbles. All this may last many months. In any case the so-called ‘coalition government’ will be formed not before the midsummer (this is an optimistic forecast) or even the autumn. As is known, the next election to the Parliament will be held in March 2002, and the new composition of the Parliament will regard the ‘political agreement’ as non-existent either legally or morally. Thus no time in fact remains for the constructive work of the government. A rhetoric question appears: what is the sense of signing this agreement and creating the ‘coalition government’? Will it raise the living standard of Ukrainian citizens, or will it provide the support by the government of the planned election campaign?
The actions of creating the so-called ‘permanent parliamentary majority’ developed according to a similar scenario. This question, allegedly by people’s initiative, was included into the all-Ukrainian referendum of 16 April 2000. The question what the term ‘permanent parliamentary majority’ is still open not only for politicians, who insistently appeal to create this majority, but also to scholars, who study such problems. Basing on the text of the Ukrainian Constitution it is possible to speak at least about three ways of creating such parliamentary majority: a) simple (226 MPs) – Articles 91, 84, 87, Part 2 Article 111); b) two kinds of the qualified majority: 2/3 of the constitutional composition of the Parliament (i.e. 300 MPs) – Articles 20, 155, 156, and 3/4 of the composition (i.e. 337.5 MPs) – Part 5 Article 111. By the way, as to the latter kind of the parliamentary majority this concept is unsatisfactory not only juridically, but as a text, which is a clumsy creation of people’s deputies.
The theoretical justification of the necessity to from the parliamentary majority and the attempts to ‘tie’ it with operating in Ukraine constitutional model (as well as other questions of the all-Ukrainian referendum and their so-called ‘implementation’ to the Constitution of Ukraine) served as an occupation for not only the overwhelming majority of MPs, political figures, state authorities, but also for the noticeable number of state officers and lawyers, which diverted them from their direct duties. Certainly, it would be much more useful if they all directed their energy to the preparation of the necessary legal base for efficient reforms (adoption of codes and laws, liberalization of the tax system, implementation of the administrative reform, etc.). That is why, as in all recent years, the government had to prepare the draft of the state budget on the same obsolete tax base, while more than 90% of the Ukrainian population stay on the wrong side of the poverty line (according to the data quoted by President Kuchma).
Besides, the parliamentary majority cannot be created artificially. It may appear in the Parliament only as a result of an election. No agreements or voluntary obligations taken by individual MPs or fractions to join the majority may not have any juridical consequences. Likewise, in any moment these MPs or fractions may repudiate from the cooperation with the majority. That is why the political discussion about the creation of the so-called ‘permanent parliamentary majority’ contrary to the election results, as well as any efforts to create such a majority have no prospects, while the present Constitution operates. From this standpoint the declaration of the head of the state about his efforts to create the parliamentary majority looks somewhat peculiar, since the Constitution of Ukraine does not stipulate such power for the President. Moreover, the Ukrainian President, as well as any other state officer or state organ, has to act according to Part 2 Article 19 of the Basic Law: ‘only on the base, within his power and in the way stipulated by the Constitution and Ukrainian laws’. The sense of the constitutional division of powers is the principle that ant branch of power may not interfere with the functions of another branch or take upon itself its duties. In which way can the head of the state influence the operation of the only law-creating organ? First of all, by using his right to veto laws adopted by the Parliament (for example, if the vetoed law, in the President’s opinion, restricts the rights of man and citizen or contradicts the Basic Law), by suggesting the Parliament to adopt drafts of laws, codes and other legal acts, by proclaiming some laws urgent, which will oblige the Supreme Rada to consider these laws out of turn. Yet, forming or even any influence upon forming the parliamentary majority on the side of the head of the state is outside his constitutional powers. According to the present constitutional model, the parliamentary majority must be situational, hence temporary. The very attempt to create a majority contradicts Part 2 Article 80 of the Ukrainian Constitution that guarantees the right of an MP to express freely and to defend his own opinion and to vote correspondingly. That is why the attempt to make the Parliament create a majority restricts the constitutional status of people’s deputies. Moreover, a question arises: what is the meaning for an MP of belonging to the parliamentary majority? If an MP is forced to vote in such a way, as it is demanded by the majority coordinator, then it is not democracy any more. Yet, if an MP has the right to vote according to his opinion (according to his consciousness, convictions, experience and professional knowledge), as it is stipulated by the Constitution, then there the parliamentary majority would stop to have sense.
At last, the most principal. The creation of the coalition government is typical only for a parliamentary republic or a parliamentary monarchy under the conditions that not a single party or block have got no majority in the Parliament as a result of the election. In such countries the government is formed by the political party, which got the majority of votes. In this case one may speak about the responsibility of this party and the government formed by it for the results of the activities of the latter. ‘The coalition government’, as a well-known Russian lawyer V. Chirkin wrote, ‘is created in parliamentary monarchies and republics, when the places in the Parliament are distributed among various parties. To from a government in a dual monarchy or presidential republic, where the composition of the government head is appointed by the head of the state only, the distribution of political forces in the Parliament is juridical meaningless. Although the head of the state may account for the distribution of parties in the Parliament (and it is frequently done in modern conditions) such government cannot be called a coalition one. The sense of the latter is how a party in the Parliament may win the vote of confidence without having the majority. For this they must provide the support of MPs of several parties from the parliamentary majority. Such a situation is typical for Italy (in the last decades), for Japan (since 1993), for Belgium and the Netherlands, where all the parties are small, and none of them is dominating’ (V. Chirkin, ‘Fundamentals of the comparative state studies’, Moscow, ‘Artikul’ 1997, pp. 264-265).
Today, according to the operating Constitution, Ukraine is a presidential-parliamentary republic, not a parliamentary one. So, the demand addressed to the Prime-Minister to create the coalition government is unconstitutional, since the Ukrainian Constitution does not contain any criteria, which may be used by the head of the state and the Prime-Minister in the process of forming the personal composition of the government. This means that they have no duty to consult with MPs and may decide this question according to their own opinion. That is how the Prime-Minister may choose a candidate, and the President has the right either to confirm this candidate or to reject him. This certainly does not prevent to have consultations between the head of the state and the head of the government. So, according to the operating Constitution, the participation of the Parliament in forming the government is non-existing. This is the very constitutional model, which was directly introduced by the present supporters of creating the coalition government.
The situation, which appears today as to the problem of creating the coalition government, resembles very much the political discussions (which were rather insistently pressed upon the society by certain political forces in the autumn of 2000) about the joint responsibility of the Parliament and government for the state of affairs in the country and the reforms. Then the subjects of the political process appeared to have enough common sense to understand the absurdity of such ideas. It is not surprising, since the Ukrainian Constitution does not stipulate such a responsibility at all. According to the operating constitutional model the Parliament has the right to agree with the President’s candidature for the Prime-Minister, and has no right to participate in the forming of the government. That is why the Parliament cannot be responsible for the actions of the government. The Parliament has its own work to do, mainly in the sphere of creating laws – the convenient legal base for the efficient work of the government. We mainly mean the Law on the Cabinet of Ministers of Ukraine, Civil, Tax and other codes. It is the absence of these laws that brakes social and economic development of Ukraine, and not artificial problems like ‘the permanent parliamentary majority’, ‘the coalition government’, ‘the joint responsibility of the Parliament and government’, ‘political agreement between the Parliament and the government’, the demands to V. Yushchenko ‘to make clear what is his political party’, etc.
Having no constructive suggestions, some politicians, even having refused from their communist past, the time repeat the bolsheviks error, all the time looking for enemies. The role of the latter in Ukraine is usually played by the free mass media (which elucidate the events in the country ‘in a wrong way’) and the government (which ‘miscarries’ the reforms). And where is the head of the state with his extremely broad powers, where are his law drafts, with which he had to ‘load’ the Parliament? Only after this one would have the right to criticize the Supreme Rada for artificial prolonging the law-creating process and non-constructional attitude. And where is our Parliament, whose work satisfies only its chairmen? Almost five years have passed since the adoption of the Ukrainian Constitution, but not a single code has been adopted since then. This illustrates very well the efficiency of the work of the Supreme Rada in its main function – adoption of laws. Parliaments of the civilized countries spend all their potential and most of their time to fulfil this function. Unfortunately, the Ukrainian Parliament digress from this function very easily, devoting the time to political fights and quarrels.
And what has the Parliament done to facilitate the efficient work of the government? Practically nothing. The legal status of the Prime-Minister still remains rather vague, his political image and role are artificially belittled. Moreover, the existing system of relations between different branches of the power, the possession by the President of too much power and, in fact, the complete irresponsibility for the results very often (if not to say always) make a current Prime-Minister just a scapegoat, who is responsible for all the troubles of the state and has to retire for them. This enables the President permanently play the part of an aloof observer and ‘commentator’ of events in the country. It also enables some members of the government to openly ignore the orders of the Prime-Minister, who has no tools to influence them. Can such a government efficiently work under such conditions? Is it necessary to exchange another dozen of Prime-Ministers to see the obvious: in order to carry out real reforms, and not those on paper, it is necessary to create the proper legal base for government activities? Thus the artificial problems of creating the coalition government, demands to the Prime-Minister to determine to which party he belongs, attempts to drag him into political squabbles, the idea to sign the political agreement between the Parliament and the government again may drag our society into a fruitless discussion, while the pauperization of the majority of the population will last. Moreover, such appeals, and especially the latter idea to sign the political agreement, is actually another to circumvent the operating Constitution, while it is rather complicated to introduce changes observing the proper procedure. It would need 300 votes, which is impossible having the Parliament such as it is; besides the changes will need the confirmation by an all-Ukrainian referendum. It seems that some politicians, who dared to represent the so-called ‘parliamentary majority’, actually attempt to change the operating Constitution in the part, which treats the legal status, principles and mechanisms of mutual relations of different branches of power. The Ukrainian Constitution determined the interrelations among the Supreme Rada, the President and the Cabinet of Ministers rather distinctly. That is why different branches of state power have only to obey the existing norms, punctually and carefully fulfil their constitutional functions, instead of searching new, diverse, but almost always futile ‘ways’ or ‘recipes’ of improving the situation in the country. And the ‘noise’ around signing the political agreement and creating the coalition government is another attempt of certain political forces to attract public attention and to obtain additional political dividends before the coming parliamentary election. This is a part of a long-term PR-campaign, prepared by experienced image-makers for these political forces. Before the coming parliamentary election we shall certainly become spectators of several similar ‘political shows’.
Some time before politicians trusted on the public the so-called Constitutional Treaty, which in the final count was signed, and for a certain time it became the juridical fixation of the political compromise. But it could not serve a greater role. Soon various political forces began, when it was profitable for them, refer to different parts of this document, in other cases they preferred to refer to the Ukrainian Constitution of 1978 that at that time was still officially operative. As a result, the Constitutional Treaty could not play the role that was expected, and only postponed the development and adoption of the new Constitution. Because of this everybody suffered: Ukrainian citizens and all our society, for important intellectual forces were dragged into endless discussions on the main positions of the Treaty and then the Basic Law instead of developing the needed codes and other legal acts. The precious time was hopelessly wasted.
This destiny may await the ‘political agreement’ (or ‘political memorandum’) that is being prepared by the working group consisting of MPs and representatives of the government. The obvious utopianism of the ‘political agreement’ is confirmed by the facts that first, signing it directly contradicts the Ukrainian Constitution and secondly, its authors support incompatible views concerning not only its content, but also its subject, conditions and procedure of its signing. One must not be a prophet to predict the further development of events. Even if the agreement were successfully signed soon, the problem of its realization would arise. ‘Political bargaining’ will begin among various political parties and the Prime-Minister for the portfolios in the government and in local executive bodies (which contradicts the Ukrainian Constitution). Certainly, the Ukrainian President will not stand aside in these squabbles. All this may last many months. In any case the so-called ‘coalition government’ will be formed not before the midsummer (this is an optimistic forecast) or even the autumn. As is known, the next election to the Parliament will be held in March 2002, and the new composition of the Parliament will regard the ‘political agreement’ as non-existent either legally or morally. Thus no time in fact remains for the constructive work of the government. A rhetoric question appears: what is the sense of signing this agreement and creating the ‘coalition government’? Will it raise the living standard of Ukrainian citizens, or will it provide the support by the government of the planned election campaign?
The actions of creating the so-called ‘permanent parliamentary majority’ developed according to a similar scenario. This question, allegedly by people’s initiative, was included into the all-Ukrainian referendum of 16 April 2000. The question what the term ‘permanent parliamentary majority’ is still open not only for politicians, who insistently appeal to create this majority, but also to scholars, who study such problems. Basing on the text of the Ukrainian Constitution it is possible to speak at least about three ways of creating such parliamentary majority: a) simple (226 MPs) – Articles 91, 84, 87, Part 2 Article 111); b) two kinds of the qualified majority: 2/3 of the constitutional composition of the Parliament (i.e. 300 MPs) – Articles 20, 155, 156, and 3/4 of the composition (i.e. 337.5 MPs) – Part 5 Article 111. By the way, as to the latter kind of the parliamentary majority this concept is unsatisfactory not only juridically, but as a text, which is a clumsy creation of people’s deputies.
The theoretical justification of the necessity to from the parliamentary majority and the attempts to ‘tie’ it with operating in Ukraine constitutional model (as well as other questions of the all-Ukrainian referendum and their so-called ‘implementation’ to the Constitution of Ukraine) served as an occupation for not only the overwhelming majority of MPs, political figures, state authorities, but also for the noticeable number of state officers and lawyers, which diverted them from their direct duties. Certainly, it would be much more useful if they all directed their energy to the preparation of the necessary legal base for efficient reforms (adoption of codes and laws, liberalization of the tax system, implementation of the administrative reform, etc.). That is why, as in all recent years, the government had to prepare the draft of the state budget on the same obsolete tax base, while more than 90% of the Ukrainian population stay on the wrong side of the poverty line (according to the data quoted by President Kuchma).
Besides, the parliamentary majority cannot be created artificially. It may appear in the Parliament only as a result of an election. No agreements or voluntary obligations taken by individual MPs or fractions to join the majority may not have any juridical consequences. Likewise, in any moment these MPs or fractions may repudiate from the cooperation with the majority. That is why the political discussion about the creation of the so-called ‘permanent parliamentary majority’ contrary to the election results, as well as any efforts to create such a majority have no prospects, while the present Constitution operates. From this standpoint the declaration of the head of the state about his efforts to create the parliamentary majority looks somewhat peculiar, since the Constitution of Ukraine does not stipulate such power for the President. Moreover, the Ukrainian President, as well as any other state officer or state organ, has to act according to Part 2 Article 19 of the Basic Law: ‘only on the base, within his power and in the way stipulated by the Constitution and Ukrainian laws’. The sense of the constitutional division of powers is the principle that ant branch of power may not interfere with the functions of another branch or take upon itself its duties. In which way can the head of the state influence the operation of the only law-creating organ? First of all, by using his right to veto laws adopted by the Parliament (for example, if the vetoed law, in the President’s opinion, restricts the rights of man and citizen or contradicts the Basic Law), by suggesting the Parliament to adopt drafts of laws, codes and other legal acts, by proclaiming some laws urgent, which will oblige the Supreme Rada to consider these laws out of turn. Yet, forming or even any influence upon forming the parliamentary majority on the side of the head of the state is outside his constitutional powers. According to the present constitutional model, the parliamentary majority must be situational, hence temporary. The very attempt to create a majority contradicts Part 2 Article 80 of the Ukrainian Constitution that guarantees the right of an MP to express freely and to defend his own opinion and to vote correspondingly. That is why the attempt to make the Parliament create a majority restricts the constitutional status of people’s deputies. Moreover, a question arises: what is the meaning for an MP of belonging to the parliamentary majority? If an MP is forced to vote in such a way, as it is demanded by the majority coordinator, then it is not democracy any more. Yet, if an MP has the right to vote according to his opinion (according to his consciousness, convictions, experience and professional knowledge), as it is stipulated by the Constitution, then there the parliamentary majority would stop to have sense.
At last, the most principal. The creation of the coalition government is typical only for a parliamentary republic or a parliamentary monarchy under the conditions that not a single party or block have got no majority in the Parliament as a result of the election. In such countries the government is formed by the political party, which got the majority of votes. In this case one may speak about the responsibility of this party and the government formed by it for the results of the activities of the latter. ‘The coalition government’, as a well-known Russian lawyer V. Chirkin wrote, ‘is created in parliamentary monarchies and republics, when the places in the Parliament are distributed among various parties. To from a government in a dual monarchy or presidential republic, where the composition of the government head is appointed by the head of the state only, the distribution of political forces in the Parliament is juridical meaningless. Although the head of the state may account for the distribution of parties in the Parliament (and it is frequently done in modern conditions) such government cannot be called a coalition one. The sense of the latter is how a party in the Parliament may win the vote of confidence without having the majority. For this they must provide the support of MPs of several parties from the parliamentary majority. Such a situation is typical for Italy (in the last decades), for Japan (since 1993), for Belgium and the Netherlands, where all the parties are small, and none of them is dominating’ (V. Chirkin, ‘Fundamentals of the comparative state studies’, Moscow, ‘Artikul’ 1997, pp. 264-265).
Today, according to the operating Constitution, Ukraine is a presidential-parliamentary republic, not a parliamentary one. So, the demand addressed to the Prime-Minister to create the coalition government is unconstitutional, since the Ukrainian Constitution does not contain any criteria, which may be used by the head of the state and the Prime-Minister in the process of forming the personal composition of the government. This means that they have no duty to consult with MPs and may decide this question according to their own opinion. That is how the Prime-Minister may choose a candidate, and the President has the right either to confirm this candidate or to reject him. This certainly does not prevent to have consultations between the head of the state and the head of the government. So, according to the operating Constitution, the participation of the Parliament in forming the government is non-existing. This is the very constitutional model, which was directly introduced by the present supporters of creating the coalition government.
The situation, which appears today as to the problem of creating the coalition government, resembles very much the political discussions (which were rather insistently pressed upon the society by certain political forces in the autumn of 2000) about the joint responsibility of the Parliament and government for the state of affairs in the country and the reforms. Then the subjects of the political process appeared to have enough common sense to understand the absurdity of such ideas. It is not surprising, since the Ukrainian Constitution does not stipulate such a responsibility at all. According to the operating constitutional model the Parliament has the right to agree with the President’s candidature for the Prime-Minister, and has no right to participate in the forming of the government. That is why the Parliament cannot be responsible for the actions of the government. The Parliament has its own work to do, mainly in the sphere of creating laws – the convenient legal base for the efficient work of the government. We mainly mean the Law on the Cabinet of Ministers of Ukraine, Civil, Tax and other codes. It is the absence of these laws that brakes social and economic development of Ukraine, and not artificial problems like ‘the permanent parliamentary majority’, ‘the coalition government’, ‘the joint responsibility of the Parliament and government’, ‘political agreement between the Parliament and the government’, the demands to V. Yushchenko ‘to make clear what is his political party’, etc.
Having no constructive suggestions, some politicians, even having refused from their communist past, the time repeat the bolsheviks error, all the time looking for enemies. The role of the latter in Ukraine is usually played by the free mass media (which elucidate the events in the country ‘in a wrong way’) and the government (which ‘miscarries’ the reforms). And where is the head of the state with his extremely broad powers, where are his law drafts, with which he had to ‘load’ the Parliament? Only after this one would have the right to criticize the Supreme Rada for artificial prolonging the law-creating process and non-constructional attitude. And where is our Parliament, whose work satisfies only its chairmen? Almost five years have passed since the adoption of the Ukrainian Constitution, but not a single code has been adopted since then. This illustrates very well the efficiency of the work of the Supreme Rada in its main function – adoption of laws. Parliaments of the civilized countries spend all their potential and most of their time to fulfil this function. Unfortunately, the Ukrainian Parliament digress from this function very easily, devoting the time to political fights and quarrels.
And what has the Parliament done to facilitate the efficient work of the government? Practically nothing. The legal status of the Prime-Minister still remains rather vague, his political image and role are artificially belittled. Moreover, the existing system of relations between different branches of the power, the possession by the President of too much power and, in fact, the complete irresponsibility for the results very often (if not to say always) make a current Prime-Minister just a scapegoat, who is responsible for all the troubles of the state and has to retire for them. This enables the President permanently play the part of an aloof observer and ‘commentator’ of events in the country. It also enables some members of the government to openly ignore the orders of the Prime-Minister, who has no tools to influence them. Can such a government efficiently work under such conditions? Is it necessary to exchange another dozen of Prime-Ministers to see the obvious: in order to carry out real reforms, and not those on paper, it is necessary to create the proper legal base for government activities? Thus the artificial problems of creating the coalition government, demands to the Prime-Minister to determine to which party he belongs, attempts to drag him into political squabbles, the idea to sign the political agreement between the Parliament and the government again may drag our society into a fruitless discussion, while the pauperization of the majority of the population will last. Moreover, such appeals, and especially the latter idea to sign the political agreement, is actually another to circumvent the operating Constitution, while it is rather complicated to introduce changes observing the proper procedure. It would need 300 votes, which is impossible having the Parliament such as it is; besides the changes will need the confirmation by an all-Ukrainian referendum. It seems that some politicians, who dared to represent the so-called ‘parliamentary majority’, actually attempt to change the operating Constitution in the part, which treats the legal status, principles and mechanisms of mutual relations of different branches of power. The Ukrainian Constitution determined the interrelations among the Supreme Rada, the President and the Cabinet of Ministers rather distinctly. That is why different branches of state power have only to obey the existing norms, punctually and carefully fulfil their constitutional functions, instead of searching new, diverse, but almost always futile ‘ways’ or ‘recipes’ of improving the situation in the country. And the ‘noise’ around signing the political agreement and creating the coalition government is another attempt of certain political forces to attract public attention and to obtain additional political dividends before the coming parliamentary election. This is a part of a long-term PR-campaign, prepared by experienced image-makers for these political forces. Before the coming parliamentary election we shall certainly become spectators of several similar ‘political shows’.