Open letter from the Kharkiv human rights protection group to participants of the negotiation process (on political situation in Ukraine as of 07.12.04)
So, we are certain that it is our obligation at the moment to say the following:
1. We consider the attempts to merge in one «package» vote for amendments to the Law on Election of the President of Ukraine, issues of resignation of the Central Election Commission (CVK) and the Ukraine’s Government, and issues of the Constitutional reform morally, politically, and legally unacceptable.
First of all, such a merge seems to us deeply immoral. When the opposition demands the resignation of the government and CVK, as well as amendments to the current election legislation, it is not about these or those political or legal gains for the opposition, but rather about a revival of a fundamental and natural right of the people and each citizen of Ukraine to vote fairly and equally, i.e. effectively, in order to get their sovereign will through, which, we would like to remind you, is not below, but above the participants of the negotiation process.
In this respect, we stress once again that the citizens’ voting rights, rights to fairly elect and be elected, go ahead of all the powers, their branches and departments, as well as all the state authorities and political institutions – from the Parliament and President to the Cabinet of Ministers and CVK altogether. Because two latter institutions, by and large, are no more than political managers, functionaries, servants to the people.
This is why the voting rights, their range and the procedure of their effecting may not be the subject of short-term deals, bargaining, or any other political gambling. The election procedures may not be artificially worsened or improved depending on individual preferences. In a jural democratic state, they always have (should have) only one vector: improving individual effectiveness, guarantees, and, consequently, political potency.
Hence, any subject of the Ukraine’s political system may not (has no right) to promise any improvement (a modification, in general) of the election legislation on a security of voting or not voting for the constitutional reform or of any other parliamentary voting in general.
The will of the Ukrainian people both in material and procedural sense may not subdue to (yield to, depend on) a will of any participant of the negotiation process. This will is a priori sovereign, supreme, naturally superior of any subject of the negotiations, the national political elite in general. We would like to remind you once again that the decisions, whether to make a second round (re-vote) of the presidential election «more» or «less» fair and transparent, may not and should not depend on any insider deals. Because the values, which are directly affected here, are by far superior of the interests of the party leaders, parliamentary factions, presidential candidates, Prime Minister, or the CVK. They are even superior of the personal interests of L. Kuchma, V. Yanukovich, P. Simonenko, O. Moroz, or V. Yushchenko.
2. Further, the issue of the constitutional reform, honestly speaking, is too important and fundamental, to be «shoved» to existence in the situation of political crisis, which is in place today. Reminder: the Constitution is a superior strategic regulator of Ukraine’s domestic and international political life. In this capacity it may not be a hostage or subject of any operational political tactics. The Constitution is substantially superior of any political tactics, superior of any operational parliamentary or president’s maneuvering, and, consequently, it may not be modified or corrected in the regime of emergency, so to speak, «at odd moments.»
We once again would like to assert that the suggested version of modifications to the Constitution in Bill No. 4180 is far from optimal. It does not agree with basic political and legal logic and quite often contradicts the common sense.
It is well known that the 1996 Ukraine’s Constitution was written following the best examples in Europe and in the world of the time. While being the conceptually borrowed document, it, in its political and legal qualities, surpassed the vernacular creative possibilities of constitutional thought then existed in Ukraine.
Today the situation looks principally different. In contrast to the integrated, publicly well known text of the current Constitution, the draft political reform is a result of our exclusively «home-made» designs and developments, a product of the political culture that virtually exists now. So, although the bill this time is really national, its political and legal qualities remain more than questionable. It’s not an accident that this bill was condemned by the Venetian Commission, which, in polite but transparent form, let us know that the design of our constitutional «bicycle» had not been improved. Unfortunately, however, the sincere and honest criticism by our good colleagues and friends, failed to positively influence our sensible persistence… Furthermore, it looks like that our naпve self-confidence in the issues of constitutional theory even grew.
We have repeatedly pointed out that almost all the mixed draft constitutional amendments, which the current authorities with various intensity tried to push through in various periods, broke the imperfect but viable executive ladder of management, introduced a disciplinary statute for public deputies, played to the political primitivism of party bosses and faction leaders, completely leveled the expressions of people’s individuality on major levels and steps of the government.
In this sense, the last version of Bill No. 4180 on the constitutional amendments is another attempt of incompetent constitutional correction. Having no desire to raise its level of political culture to the requirements of the current constitution, the acting authorities stubbornly try to reduce the level of constitutional correction to their confused and shortsighted pseudo-democratic notions.
And there is no one among the leadership, who feels uneasy, as the bill actually breaks the integrity of domestic and international policies of Ukraine, encroaches on a Cabinet of Ministers’ principle of collective responsibility, ignores a principle of division of power. The bill introduces a basis for non-critical parliamentary collectivism and apparently increases risks of a Parliament-vs.-President confrontation…
However, the most important thing, in our opinion, is that Bill No. 4180 actually narrows down a social base of democracy in Ukraine. According to the constitutional reform design, the nation’s strategy and tactics becomes a prerogative of the Parliament, which, in comparison to the people, after all, could be corrupted. Everybody knows that the democracy of masses is important, just because it is impossible to physically corrupt the people. This classic thought, old-established in political science, has repeatedly confirmed in various places. Therefore, in the Ukrainian situation, the dependency of the influential presidential position on a direct popular vote is absolutely justified, urgent, and doubtless.
This dependency is also a strategic counterbalance against possible international political pressure on Ukraine. Besides, Ukraine is still on such a level of political development, when its financial and economic power and policy is overly merged. This is why, in the Ukraine’s political system, the popularly elected President still plays an important role.
As it was partly noted above, the President with strong powers is important for adequate national response to Russian and other similar challenges. Moreover, Russia, other CIS countries are all presidential republics, which international policies influence us, and not only in the matters of energy supply. Needless to say that Ukraine must have the presidential mechanisms of rapid force to respond to the challenges of this kind. Obviously, in this case we speak of something bigger than just optimization of relations at the level of executive power.
That is why we consider that the subject of the constitutional reform could have been even the strengthening the President’s executive powers, direct subordination of the Cabinet of Ministers to the President, along with making him directly politically and legally responsible for actions and policies on the part of the government.
In any case, the reduction of the President’s status to solely representative functions on the international arena suggested by the reformers, is, in our opinion, not only poorly motivated and justified, but also dangerous for providing national independence and people’s sovereignty. If the reform does occur, the all too great corporate organization of Ukraine’s political system will sharply increase. Influence of self-interest on the part of powerful financial and economic groups on the Parliament will become stronger and of systematic nature.
A very different story is a Ukrainian moderate federalism, which could, in terms of reform («two Ukraines»), be discussed in earnest. After all, the idea of decentralization has been recognized in Ukraine since M. Dragomanov. It is well known that M. Grushevskiy, S. Shelukhin, and R. Laschenko were ideological federalists. In general, the constitutional reform of such kind could have been, in fact, timely. However, it should have been a very different, really anti-crisis reform.
3. We stress, in particular, that the parties, which leaders during the presidential campaign got 5 to 6% or even less of the popular vote may not be lobbyists for the constitutional (political) reform. We cannot understand at all, why the ideas of the reform should be implemented by those, who expressed most reservations about it and on that basis got their most electorate support.
It looks absolutely illogical that V. Yushchenko, using his authority, ha to carry out ideas of political losers (we kindly ask not to take this thesis personally), like P. Simonenko or O. Moroz. We can speak and write a lot of different things on the matter, but in the intention and attempt to carry out the reform at the expense of «Our Ukraine» [political party], we see a situation, when «a winner follows a loser.»
Once again, we would like to bring attention of political leaders to the fact that effecting the constitutional reform with radical transformation of presidential powers between first and second round (re-run) of the presidential election campaign is absurd and unconstitutional. It is obviously unacceptable, when Ukrainian citizens voted for President with one status in the first round, and would vote for President with obviously other status in the second one.
We understand that those hundreds of thousands people on the Independence Square in Kyiv in the December frost stand not for electing a person who just «governs but not rules.» The people on the Square stand for electing their cherished President of truth and good. Consciously and subconsciously, they rely on him personally, on the power and authority of his constitutional post. The people on the Square are fighting for a fair getman [Ukrainian traditional ruler], not a cunning courtier. We don’t think it’s advisable to anybody to forget about that.
The power of spirit, vivid mind, openness and moral cleanness of the people on the Square is incomparably superior of the obscurant sense of the divisive constitutional reform. Students, workers and businessmen do in fact stand for reform, though not for the reform of formal institutions, but for the change of the pathologically corrupt and dishonest authorities. All of them do not protest against the half-baked legal forms. They protest against that human material, with which these forms are filled under the circumstances. So, they protest against lazy and disconnected people, not against constitutional ABC and norms. This is why the current attempt of the constitutional reform is, in our opinion, an attempt made by the old authorities to divert the energy of human burst into a wrong channel. The dead haunt the alive, the former envy the easygoingness and freedom of the latter, exerting their last strengths the dead pull us back to the old, moldy, and dark political grave.
We are certain that the people on the Kyiv’s Independence Square protest against their personal humiliation, caused not by institutions, but by absolutely real individuals. However, the traitorous, angry, or just not very intelligent politicians want, at any cost, to convince us that these people’s enemy is not those evil-minded embezzlers of public funds with pretensions of provincial snobs, but something abstract and formally-legal.
In this sense, the «reformers» are not ironing down the current crisis situation, but rather making it more acute. Because in reality, the Square’s demands are modest: just fair, not falsified elections. In contrast, the reformist demands on the part of authorities are ambitious and totally immoral. They want to turn the public power into a «reform,» which does not augment, but suppresses and kills our best hopes.
4. And V. Havel, in his commentary on the events of the Ukrainian orange movement, was right: it’s not only about the election of V. Yushchenko, but about a funeral of the Ukrainian post-communism in general. So, the ring, which is in the air over the national capital’s square for half a month already, is for that. In this place, people rid themselves of their fear, and along with it, their feeling of dependency and enslavement. Their leader is an antithesis to immorality, as well as to an authoritarian political style. So, he is an antithesis not to a form, but to an old political substance. Really, V. Yushchenko is a Ukrainian political «outsider,» a bohemian, in the best meaning of this word. His style of communication with the public is off-hand and easy. His thoughts are both refined and clear. He is really a people’s candidate, a personification of the Ukrainian meritocracy of talent.
In fact, this is clear to all participants of the negotiation process. On the other hand, rational thinking of these people in power mixes with their many not quite elegant «secondary» feelings. Once T. Mann said about French king Henri IV, «He was simple in his soul, but not in his mind.» Obviously, V. Yushchenko has soul and mind, a natural charisma.
The real scale of the personality, depth and significance of this figure, are growing literally before our eyes, unfolding day by day. With the same speed, also is growing the human envy to this. We have an excellent phenomenon of the person’s natural augmentation with all the connotations, which usually accompany these things.
A free people rarely make mistakes and love a person, who really deserves it. It just happened that the Ukrainian people fell in love with V. Yushchenko. In comparison to his enthusiastic and genuine popularity, figures, who just very recently were in the foreground, now look very insignificant. It just happened that those people are subjects of the negotiating process. So, our letter is addressed to these people in the first place.
Obviously, the Ukrainians will not stand for any of them in the frost for half a month. But do they have a moral right to be offended with this? And is it reasonable in this situation for them to think about how quickly and skillfully clip wings to the leader, who managed to show people the advantages of dignity and freedom?
Do they really want that strongly the constitutional reform? Do they really want fairness, guarantees of human rights, democracy?
We cannot exclude that our people in power do want to look at these wonders. However, we certainly will never know it. So, having our justified doubts and anxiety in mind for all they have done, we address them our request not to be so die-hardly careful about our interests.
In the end, we would like to tell these people: give up your political envy, forget about your spiritually petty and poorly thought of constitutionally-separatist scheming, step out, allow the Ukrainian people, at last, to hit the free road.
7 December 2004
The Kharkiv Human Rights Protection Group