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Response from Vsevolod Rechytsky to Myroslav Marynovych

Vsevolod Rechytsky

I am extremely grateful to Myroslav Marynovych for his comments. They are deep and accurate if one is bold enough to apply this word to ethical reflections. I also share to a large extent his moral position and starting point. At the same time it is precisely here that the temptation arises for succinct polemics. For example, M. Marynovych writes: “I am not a lawyer, and my legal awareness is based rather on a sense of justice”. In contrast, I think and write as a lawyer, and this once again prompts me to think about what exactly this means.

It would clearly be banal to say that the law is justice. It would be equally so to state that the law does not always epitomize justice. One can provide a great number of examples and arguments to back up each of these stands. I will therefore confine myself to a minimum number of illustrations. Exceptions are interesting but it is not on these that a legal system is based.

The law, in contrast to morality, is a regulating system with limited discretion. Morality is warm, the law – cold. At the same time, the law is a much more tolerant regulatory system if compared with morality. The law puts up with things longer, however when it does speak, it is difficult not to take heed. It is for this reason that we have such virtually inhuman rigour towards those who apply the law – judges, senators and presidents …

When the law begins to speak, little is able to stop it. The law acts using people as intermediaries, however it speaks on behalf of an abstract authority, that is, independent of any specific individuals. If morality can for some time be disregarded, such neglect of the law cannot last for long. Virtually all social and political systems which have managed to survive in the modern world are built on this principle. The average Ukrainian citizen can be forgiven neglect of the law since this will simply be lost in the overall mass. The shuffling of legal norms, however, which the President’s legal office recently resorted to will not be similarly lost.  One way or another, injustice perpetrated in the name of justice stirs people much more strongly than injustice in the name of a particular individual.

M. Marynovych writes that he is impressed by the legal stand taken with regard to the President’s Decree by Bohdan A. Futey, Judge of the U.S. Court of Federal Claims. Well yes, the honorary adviser to the Ukrainian President Bohdan Futey is in his way right. His arguments make sense within the context of the American legal system. One can even say that Judge Futey presents a type of legal proof typical for the Anglo-Saxon (common law) legal system.  Such juridical logic is dominant in the USA so there is nothing strange in the fact that B. Futey turns specifically to this.

The United States have perhaps the shortest Constitution in the world, while judges over more than 250 years of its existence have filled hundreds of volumes of court rulings interpreting the meaning of the laconically expressed constitutional formulae. Ukraine, however, is one of the countries with a continental legal system which envisages incomparably narrower options for judicial interpretation of the legal material. This statement directly relates to the list of constitutional powers of the Ukrainian President. For example, Article 19 of the Main Law effectively deprives the President of any truly discretionary powers. The freedom of choice given the Ukrainian President lies in being able to exercise or not exercise the right which the Constitution designates, but he cannot create for himself new juridical duties or rights. The President may ask for new opportunities via his right of legislative initiative  however he is prohibited from resorting to direct extension of the constitutional list of existing powers. Let’s say, the President can pardon at his own discretion a criminal, or refuse to do this (Article 106 § 1.27 of the Constitution), however he can under no circumstances issue a Decree of Amnesty since he does not have such a right.

Metaphorically speaking, when serious gamblers sit down to play and the stakes get higher and higher, they take a risk, but it doesn’t occur to them to overturn the table they’re playing at if they lose. The President however is convinced that the prerogative lies with him to stop the game when he feels like it. He is, moreover, worried less about the prospect of losing the stake in the form of people’s or State sovereignty, than by the fact that this sovereignty could suddenly make do without him.

At one time the President effectively prevented the law being applied against the organizers of the vote-rigging and separatists. Now he is attempting to use it capriciously against people who are specifically in the constitutional sense of the word innocent. Let’s be frank. The President will not be satisfied by how Deputies votes, but what they vote for. He is worried not by the form, but by the trend. Deputies moved from faction to faction on a mass scale previously as well. According to scholars, in the last Verkhovna Rada people resorted to this more than three hundred (!) times. Even an exemplary Deputy like V. Musiyaka moved from faction to faction on several occasions.

It is unlikely that the President ever had any illusions about the type of politics that Oleksandr Moroz and Viktor Yanukovych would engage in. At one time he decided to rely on them since it was easier in that way to govern the country. The conflict arose only when the fate of the President himself proved at stake. That is, he erred in the degree of humility which politicians of the “field rank” were to show him.

At the end of the day, if the Court allows the President the right to dissolve parliament through unacceptable blocking and voting of deputies, then why not allow him the right to dissolve parliament when the latter dares vote for his impeachment?  After all, impeachment can also be a threat to national interests. As lawyers well know, the law can be treated with disrespect by “turning it off” just as much as by “turning it on” under improper circumstances.  The Decree cannot be justified specifically from the point of view of the President’s role as Guarantor of the Constitution of Ukraine.

We are thus yet again trying to achieve something good through means not designed for this. The aim justifies the means was the slogan which, as V. Lefeuvre once wrote served to differentiate the Soviet political system from the standards of the Western political world. It is interesting that the presence of such attitudes in the consciousness of our fellow Ukrainians is also confirmed by psychological tests. In fact, the achieving of certain aims requires the application of only certain means. This thesis is a political axiom, and not simply one of the acceptable versions for overcoming social problems.

In his reminder about the responsibility of constitutional judges, the President directs them to be governed by national interests. However in a law-based State, power is held not so much by judges, as by the abstract law which comes to life in the relevant court procedures. If one looks at the case from this point of view, it transpires that the President is seemingly trying to persuade the Constitution itself …

At one time many North Americans were convinced that O.J. Simpson was guilty of a brutal murder. However the cold system of criminal law released him for want of proof. I would be so bold as to assert that it is in precisely such acts that the ethos of a law-based state is most clearly reflected. In our case the President’s legal office did not chose sufficient evidence and proof in an infinitely more important case. The President set to defending the interests of the people yet saw fit to arrive in court unprepared.

Myroslav Marynovych writes that “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”. I am frankly startled by such an indulgent attitude to the President’s fulfilment of his professional duties. People need effective protection and safeguarding of their legitimate rights and freedoms, and not helpless (albeit sincere) waving of ones hands in the air. The last presidential elections were too difficult in Ukraine. The President with all his advisers and secretaries is costing us too much.

Unlike my critic, I see the victim of the President’s Decree as being not Yushchenko himself, but myself and my opponent. In my opinion Ukrainians should have already had enough of losses incurred though the chronic incompetence of those who hold power. In this sense we need not be concerned about the political fate of the elite, and of Yushchenko personally as President of the country. The fate of wider social layers representing today’s Ukraine is much more important. I don’t like the President’s Decree because in a juridical sense it is a doomed means of defending civic interests. The regrettable fact is clear to qualified lawyers: the President has behaved like a legally infantile individual.

Myroslav Marynovych writes that I analyze the situation “in one moment of time” which makes the position taken by the President seem most vulnerable, whereas at another moment the situation might have looked the exact opposite. This is also true however our President with his Decree is standing not before “history’s court”, but before a normal constitutional court. And it is in this that the juridical drama of the situation regarding the Decree lies.

The President’s Decree can really provoke political chaos, followed by the effective destruction of the Verkhovna Rada. Then the “second wave” of democratization will gain the chance to raise us once again to the heights of freedom. However it will not be a juridical commentary that such a course of events will demand.

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