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Thoughts on Vsevolod Rechytsky’s Legal Commentary

Myroslav Marynovych

My response to this commentary has one fundamental flaw: I am not a lawyer, and my legal awareness is based rather on a sense of justice. And from here it’s only one step to standing up for the political expediency which the author so correctly criticizes. From the point of view of law, therefore, our scales are radically different.

My first impression from the commentary was that each point in it seemed warranted, yet the whole was not. The second part of the text in which Vsevolod Rechytsky moves from a purely legal analysis somewhat mellowed that impression. In that part the author presents a number of apt general thoughts, and yet the feeling that something is missing remains.  In speaking of the justification of Mr Rechytsky’s arguments, I mean first and foremost the force of the legal logic before which I always feel a certain degree of humility. However I felt just this same sense of humility reading the analysis of the situation in Ukraine given by the American Judge of Ukrainian origin Bohdan Futey (cf. the interview in “Ukrainska Pravda” from 10.04.07 ) In Judge Futey’s opinion, Article 90 of the Constitution (which the President is most criticized for having “infringed”) is not confined to the right of the President to dissolve the Verkhovna Rada. My ability to personally fathom the justice of purely legal arguments is more than limited.

However, among Vsevolod Rechytsky’s conclusions there is one with which I cannot agree. He states: “The increase in the parliamentary majority thus leads not to a threat to the State or the people’s sovereignty, but to excessive regulation of the political processes in the country”. Having found myself one fine day at the will of a bribed constitutional majority in a new “Rasputin-style” Union, I would be unlikely to feel any gratification at knowing that this had been achieved by constitutionally legal means. The precedent of Adolph Hitler’s democratic victory is all too telling. So even if President Yushchenko finally becomes the victim of his own decision, I will be grateful to him for that attempt to prevent us slowly slipping into the clutches of the coalition snake which has so adeptly hypnotized us.

Vsevolod Rechytsky correctly concludes that both sides have fallen into a legal bog. It turns out that launching the mechanisms of the rule of law in a chronically non-law-based state is by no means so simple.. We lack a starting point from which we can begin a “clean slate”. Each side after all has their own trail of infringements of the Constitution. There is no political force which has not at some stage gone against the law, has not betrayed its partners and has not renounced its pre-election promises. The judiciary’s paralysis cannot therefore be explained only through the intimidation or corruption of judges. Its main cause is the prolonged imitation of a legal system and it is now impossible to establish when exactly the legal illegitimacy of the authorities’ decisions began.

However Vsevolod Rechytsky does nonetheless attempt to find such a beginning point and finds it in the procedurally unlawful passing of the “political reform” or constitutional amendments of 8 December 2004. “Against the background of the political upheavals of recent years the true threat for Ukraine would seem less the coalition’s majority, than the split in State power at the highest level, exacerbated by the “political reform. …. The Constitution as rewritten by incompetents is indeed illegitimate and is absolutely not a document which we should defend with all our might”. I agreed with this verdict back when it appeared in the joint assessment from the Kharkiv Human Rights Protection Group, of which V. Rechytsky was co-author. It is indeed mainly those who insisted on introducing this “political reform” and those who agreed to it who bear the blame for the present troubles in the country. However you look at it, those who signed the agreement regarding these amendments with violations of the Constitution lost the moral right later to accuse others of violating the Constitution.

Here too, however, it is not so easy to throw off the logic of political expediency. After all, if I had to choose between an unconstitutional political compromise and legal purism together with bloody conflict, I would I imagine still choose compromise. It is after all easier to overcome a legal collision than blood which has been shed.  It is vital only that, having maintained peace in society, you do nonetheless rectify in timely manner the consequences of the mockery made of the law. Otherwise, as Mr Rechytsky correctly states, legal nihilism will inevitably become “the prelude to chaos”, and this means that it will bring society to the bring of new civic conflict.

Let us return to the text of the commentary. I suspect that my dissatisfaction arises mainly from the impression that the author is analyzing the situation in one moment of time where the position taken by the President seems most vulnerable, whereas in fact at another moment the situation might have looked the exact opposite. I don’t therefore know whether in our situation it is at all possible to make a self-sufficient academic legal analysis of the constitutionality of one state act taken in isolation. The main aim of legal experts at the present, in my view, should be directed at seeking how to find and justify a point for “risk assessment” under the previous mass disregard for the law and to start a “clean sheet” after which each violation of the Constitution or legislation must definitely be identified and punished. I feel that it would be impossible to achieve this from any arbitrarily taken point in time with general consensus regarding the binding nature of the rule of law.

They say that in the present situation the only pragmatic solution is to find a political consensus. That at least is the conclusion to which an ever greater number of analysts are coming. However that is precisely the kind of hope that is so well expressed in the Ancient Roman contra spem spero – “I hope against hope”. The latest political expediency it would seem can give a temporary breathing space during which the sides will only re-consolidate their forces for new confrontation. New deals will not provide true resolution since the parties to the conflict are simply not ready for it. At the end of the day nobody can even give any sensible explanation of what kind of resolution this would be. I am therefore filled with two seemingly conflicting moods. On the one hand, I am grateful to the post-Maidan opposition since it has finally emerged from the stupor of disunity and inaction. The rules of a duel demand that that the glove flung down is taken up. I would like the hand of the opposition to be firm. On the other hand, bearing in mind that the positions of all parties are legally weak, I would hope that politicians’ firmness will not come out in blind stubbornness, as a result of which the legal collision will turn into legal absurdity. I would so hate to see Ukraine enter the world’s books on jurisprudence as a textbook example of legal dilettantism. 

It is vital only that the next reconciliation definitely be combined with a harmonizing of relations between the branches of power and the formulating of civilized rules of the “game”. In this case Ukraine could emerge from the present crisis more democratically mature.

At the moral level the situation is even more tragic. All political forces without exception have betrayed and conned somebody. There is no political force which would have the moral right to stand in moral judgment over others. Well, you don’t plan a moment of catharsis at a party congress and therefore the people (or more precisely, the morally attuned people with a conscience) must be vigilant so as to not miss the moment when such a general purification may become possible. Looking at 2005, how state criminals peaceably turned into innocent “political opponents”, I became obsessed with the idea of lustration as an enforced, but saving medicine for the Ukrainian social disease. However this did not last long. These days I am more and more enthusiastic about the experience of the well-known Truth and Reconciliation Commission in South Africa. There the non-violent nature of the dismantling of the Apartheid system was safeguarded not via under-the-carpet deals resulting in the main criminals escaping liability, but in nationwide repentance taking legal form. Having made a voluntary confession to the Commission, those whose conscience was burdened by some crime were freed from further punishment. Those criminals who did not wish to repent were, if their crime was uncovered, subject to the force of the law.

The difference between the Ukrainian and South African situation is huge. In our case the unrepentant sin has remained in the public organism, is swirling, increasing and continuing to spread its poison. After all, even after stifling his own conscience, a criminal still remembers his crimes and fears being found out. In order to prevent this, he assiduously defends the criminal system which is his only guarantee of the longed-for safety. Defending the system, a person commits new crimes and in this way a vicious cycle is formed from which there seems no escape..

However there is in fact an escape as the South African Commission brilliantly proved. However paradoxical this may sound, an effective legal mechanism was found for the cleansing of the human conscience.  Having voluntarily made a confession and received forgiveness from the members of the Commission (the moral authorities of the nation), a person not only ceased to fear for his or her safety, but could also confidently take the side of good. It no longer made sense to defend the criminal system since the past was not hanging over him or her, and the person gained the moral right to begin life with a clean slate.  In this way sin was cleansed from the public organization and the system of law only helped in this! The more I think about the experience of South African lawyers, the more impressed I am. And in the light of that admiration, I am inclined to think that in the conclusion given by Vsevolod Rechytsky, an honest lawyer who experiences almost physical pain from the constant disregard for the law, what has emerged triumphant is nonetheless pure legalism, while something crucial and of vital significance remains outside the equation.

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