The Dismantling of Ukraine’s Democracy
With events in Ukraine, together with democracy itself, unravelling fast, the publication by the US State Department of their annual human rights report, including a detailed analysis of the Ukrainian situation, received scant attention. It was hard to feel interest either given the apparent decision by western countries to turn a blind eye to the time-out declared on Ukrainian democracy. How else does one explain the lack of even diplomatic expressions of doubt during the meeting between ambassadors from G8 and EU countries and the President of Ukraine when the latter announced his intention to sign into law amendments which are in direct breach of the Constitution?
On 9 March 2010 Ukraine’s parliamentarians adopted a law on amendments to Article 61 of the Regulations of the Verkhovna Rada. The text is, as always, wordy, however the essence is simple: the Regulations now enable National Deputies [MPs] to form a parliamentary coalition from both factions and individual deputies.
That this could in no way be reconciled with Article 83 of Ukraine’s Constitution did not daunt 235 National Deputies. Unfortunately, one cannot exclude the possibility that some of these illustrious folk see no need to reread the Constitution however it would seem impossible for the President to be the Guarantor of an unread agreement with the country’s citizens. With those same citizens who elect their representatives and who are entitled to expect that those representatives will not change the constitutionally fixed rules of play.
This is not the first time there has been dispute over the relevant parts of the Constitution. In two judgments issued in 2008, the Constitutional Court confirmed that a coalition is formed by factions, not individual deputies.
“The said analysis gives grounds for concluding that Ukraine’s Constitution stipulates that those forming a coalition of deputy factions are deputy factions. Therefore, if a deputy faction is a group of National Deputies of Ukraine elected according to the candidate list of the relevant political party (electoral bloc of political parties), then the coalition of deputy factions is made up of deputy factions which, on the basis of the election results and on agreed political positions, have formed a coalition of deputy factions.”
Can Parliamentary Regulations, adopted by a simple majority of National Deputies, cancel provisions of the Constitution? It is for the Constitutional Court to decide, however the question would seem rhetorical.
Some might ask whether the violation is so important. Perhaps we’re carping over the letter of the Constitution and in so doing obstructing those who are nobly seeking stability and a way out of the crisis? It would certainly seem as though the word “stability” exercised a hypnotic effect on many ambassadors last Wednesday, and indeed, given the scale of the crisis, who wants permanent chaos?
After months where the opposition blocked parliament and did other things aimed at anything you like, only hardly stability, it is difficult to believe in such motives. However, even if we assume that this is what motivated those parliamentarians, the price is still too high since we are not simply talking about one of many constitutional infringements.
Under the current system of proportional representation, it is factions that people vote for, not individual deputies. Despite regular promises, not one political party has yet to open up their candidate lists, with voters thus having no say as to who stands for office, and only able to guess why this or that person is on the list. They can only rely, if not on the wisdom of the party leaders, then at least on their self-preservation instinct. The only hope of wielding any influence on the politics of the State lies in their support for a particular faction.
It was precisely this hope that on 9 -10 March was taken away from Ukrainian citizens. According to the new Regulations, a majority of deputies in one faction can be against a certain coalition, and yet this will still be formed because levers will be found to entice individuals from that faction. We have no proof of any crime, yet nor do we have grounds for believing that we are talking about a radical change in the political views of individual parliamentarians.
Even if we assume such a rethinking in political position, the question remains whether deputies are actually entitled to profoundly distort the electoral will of the population.
One would like to ask the ambassadors from the USA, Canada and EU countries how they would like it if, for example, having voted for a faction with a clear anti-communist stand, the communists came to power because individual deputies had been persuaded by some means or other to leave the anti-communist faction and join them. This is when voters have absolutely no impact either on the choice of candidate or on their political career in future. The question is, however, so entirely rhetorical that it remains baffling how the said ambassadors could have sat and nodded their heads when the Guarantor of Ukraine’s Constitution informed them of his intention to strip Ukrainian citizens of their last vestige of political influence.
Nobody is denying deputies the right to vote as their conscience dictates, however their private choice must not totally distort the will of the people. The above-mentioned Constitutional Court judgment spells it all out: deputy factions which, on the basis of the election results and on agreed political positions, have formed a coalition of deputy factions” Voters elect factions, not individual candidates, and only factions answer for those policies and behaviour which displease the voters.
There were plenty of demonstrations of disregard for the principles of a law-based democracy throughout the week. The day before Vasyl Tsushko was appointed Minister of the Economy, the Prosecutor General announced that he had terminated the criminal investigation over this same former Minister of Internal Affairs. There were also other signs indicating coordinated actions by supposedly independent bodies of power. Whether or nor this fosters stability remains to be seen, however there can be no doubt what kind of conclusions Ukrainians drew regarding the role of the justice system.
Having changed the Regulations and ensured the silence of representatives of other countries, there was nothing to stop yesterday’s parliamentary opposition forming a new government. Judging by the list of new ministers, the leaders felt least of all hampered by any considerations regarding the will of the voters at the last elections. Nor are we speaking only about the fact that with a fairly divided country, there is no glimmer of an effort to represent the interests of people in the western half of Ukraine.
The appointment of certain ministers shows a staggeringly cynical indifference to the many citizens who probably did not vote for the party in power, but have yet to be stripped of their electoral rights and their entitlement to deputies who take their interests into account.
Anatoly Mohylev, for example, has been made Minister of Internal Affairs. Mohylev’s claim to fame, so to speak, includes his dispersal in Sudak of a peaceful legal demonstration at the request of the City Council, his use of a Special Forces Berkut unit and violence against Crimean Tatars during the removal of buildings from the Ai Petri Mountain in 2007. This is not to mention texts which in referring to Crimean Tatars teem with the hate speech which is declared inadmissible even in the MIA Action Plan on Countering Racism and Xenophobia in Ukraine up till 2012.
The appointment of Dmytro Tabachnyk as Minister of Education and Science has already aroused so much outrage that there seems little need to present evidence confirming Myroslav Marynovich’s assessment that this is a “slap in the face for all that is Ukrainian”.
We should however consider one likely change which Tabachnyk and the new Deputy Minister on Humanitarian Issues Volodymyr Semynozhenko are vying for the “honour” of initiating. Semynozhenko has already publicly stated that he plans to abolish mandatory external independent assessment and bring in additional entrance exams for higher educational institutes. It is known that Tabachnyk is also against external assessment which is one of the most vital reforms aimed at countering corruption and ensuring equal access to higher education. It is not hard to imagine what a blow this will be for those applying to institutes, as well to all those who long to see the country climb out of the mire of corruption.
The cynicism of this deputy-elected minister is flagrant. Having announced the likely dismantling of a system of external examination similar to that used in all developed democracies, he had the gall to state that: “Before me are tasks of a strategic nature – to create a project which will help to establish Ukraine’s place in the world, bearing in mind all specific features and advantages of our country”.
Such “reforms” will indeed establish Ukraine’s place in the world, which is the tragedy of it, together with the fact that deputies with no mandate from the people are planning to dismantle what would truly foster equal rights and European integration.
We must hope that the judgment of the Constitutional Court will prove unbiased and consistent. It would be desirable to see such consistency also from western countries. Clearly Europe prioritizes stable gas supplies. Everyone has an interest in stability and an end to a destructive battle for power, however not at the expense of the most important foundations of democracy. The first steps of this illegitimate government have demonstrated the old wisdom that when we close our eyes to contempt for rules of play, there is no end to further concessions and you can whistle for respect for the citizens of the country and for the rule of law.