Democratic Coating

 In its Resolution from 25 February 2010 on the Situation in Ukraine, the European Parliament expresses the hope that the new Ukrainian leadership “will maintain its commitment to European values”.

By European values, one assumes they mean respect for democracy and the rule of law. It is specifically these values which have been jeopardized by the situation around the formation of a new coalition and government in Ukraine. It would seem appropriate for the European Parliament, as well as all countries who have been following the development of a law-based democracy in Ukraine to pay attention to this urgent issue while there is still time to stop the dangerous erosion of fundamental democratic principles - respect for the Constitution and for the democratically expressed will of the voters 

The Resolution points out that “Ukraine is a country that has experienced Soviet domination and has come a long way to overcome the negative legacies this has left behind”.  Those legacies include weak mechanisms for safeguarding an independent judiciary, scant respect for such independence from politicians and even less confidence in court justice among the public.

A judgment is awaited in the coming week from Ukraine’s Constitutional Court. If the reports in two leading media outlets are to be believed, this judgment could confirm politicians’ and ordinary citizens’ worst cynicism, and make a mockery of democratic choice.  What is particularly disturbing is the very widespread belief that western countries have had enough of instability and of tension with Russia because of Ukraine, and will be happy with any formal imitation of democracy, without posing inconvenient questions.

We would do well to ask ourselves what this says for commitment to European values, and what kind of message will be presented to those in power, to the public and to Ukraine’s neighbours. None of them need even read between the lines since the cynicism of the present situation is hard to ignore.

In December 2004 legally questionable and politically disastrous amendments were made to the Constitution. They included a system of proportional representation whereby citizens vote for specific factions whose candidates are chosen, with no openness or consultation even among party members, by the faction bosses. It is commonly assumed that many if not most places on the candidate lists are for money or other services to the faction or its bosses.

It may seem paradoxical, but given such a system, the only real influence left the voter came in Article 83 of the Constitution which states:

“A coalition of deputy factions comprising a majority of people’s deputies of Ukraine in the constitutional membership of the Verkhovna Rada of Ukraine shall be formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms.”

With near anonymity and lack of any accountability of individual candidates / National Deputies [MPs], voters could only hope to influence policy in the country by trusting a faction to keep its pre-election promises.  After the Socialist Party failed to do so in 2006, unexpectedly changing political sides, it lost almost all support at the next elections. 

This time the issue concerns individual National Deputies. First in 2007 and now in 2010, it has proved all too easy to find extra “bodies” to reshape the political landscape, even where the entire faction is against a particular coalition.  It is worth noting that the way such individuals are “persuaded” to leave the factions they came into parliament only as members of, is talked about quite openly, with effectively no suggestion of any ideological or political differences. 

There is just as much cynicism in the predictions of another likely result if the Constitutional Court sees fit to issue a different interpretation of the same words it judged on 18 months ago.  It is assumed that the Party of the Regions will swiftly divest itself of its coalition partners. After all the communists have a certain electorate and totally ignore their voters’ wishes at their own peril. It is much less hassle to enlist, using unnamed but entirely clear means, far more malleable individuals.

In the European Parliament Resolution we read that “the EU favours a stable and democratic Ukraine that respects the principles of the social market economy, the rule of law, human rights and the protection of minorities and that guarantees fundamental rights”

Stable or not, a situation where those in power can entirely disregard the electoral will of the majority of voters cannot be called democratic. Citizens vote exclusively for factions, not for individual deputies, and they have no means of holding to answer or penalizing those who break their word and join up with a party for whom those citizens would never have voted.  With the present electoral system unchanged, a Constitutional Court stamp of approval on such behaviour by individuals makes it almost not worth going to the electoral booth.

It is not clear why at the meeting of diplomatic representatives of EU and G8 countries with President Yanukovych on 11 March, apparently only the British Ambassador, Leigh Turner, stated that the amendments to the Verkhovna Rada Regulations were inadmissible since they breached the Constitution.  It is hard to imagine how the voters in their countries would like amendments which relegated them the role of extras in a film entitled “Potemkin Democracy”.

In September 2008 the Constitutional Court confirmed that coalitions are formed by factions, not by individuals.

“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.”

This judgment by the highest court of the land was in force on 10 March 2010 when the Verkhovna Rada passed a law changing the Regulations of the Verkhovna Rada to allow individual National Deputies, as well as factions, to form a coalition. And on 11 March when President Yanukovych met with the ambassadors of EU and G8 countries and would seem to have heard objections from only the UK representative.  After this meeting the President signed into law amendments which directly contradict both Article 83 of the Constitution and the September 2008 judgment of the Constitutional Court.

The European Parliament Resolution noted that the presidential elections had shown that “Ukraine is able to conduct free and fair elections”.  Another Soviet feature was the farce of elections with all the accoutrements of the electoral process, only no choice.  This legacy is one that Ukrainians rejected in 2004. It is in danger of being restored now.

Since the formation of a coalition, sweeping changes have been made to most areas of governance, the judiciary and the media, with people loyal to President Yanukovych and his Party of the Regions taking control.  With neither formal constitutional amendments, nor referendum, political scientists are suggesting that Ukraine has already turned into a de facto presidential republic, while more and more warnings are heard from human rights groups about violations and the folding of vital measures to safeguard human rights. 

A judgment from the Constitutional Court is expected before President Yanukovych leaves for the USA on 12 April.  The President’s remarks around Easter about praying for the “right” judgment were only one of many aspects of this situation which should concern all who want a democratic law-based Ukraine.

One of the above-mentioned media reports has a title which says it all: “The Constitutional Court has given in to Yanukovych”.  The article explains the dilemma that the judges are in:

“Now, since Yanukovych came to power, the judges from the President’s quota find themselves in a difficult situation with the simple choice: either demonstrate loyalty and be a Constitutional Court judge for the entire 9-year term of office, until 2017, or be dismissed on some trumped up accusation” http://pravda.com.ua/articles/2010/04/1/4904334/.

The message is therefore that in order to provide democratic gloss for the formation of the new government (and in order to hold on to their positions), the judges need to decide that the changes to the Verkhovna Rada regulations were constitutional.

Now this is no easy matter given the words of the Constitution and the judgment of September 2008.  Presumably for that reason they decided to do without inconvenient public debate, and are to submit their verdicts in writing. The author writes: “According to our sources, in their verdict the Constitutional Court will stress Article 83 § 9 which states that “The basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Regulations of the Verkhovna Rada of Ukraine”.

The logic, so to speak, is that if the amendments to the Regulations after being passed and signed into law by Ukraine’s Guarantor of the Constitution now allow a coalition to be formed by factions and individual deputies, then we can explain to the US, and other representatives of the G8 and EU that everything’s fine and they will all nod their heads approvingly.

Not quite, gentlemen, since the Regulations must comply with the Constitution, not vice versa, and you all knew, or should have known, on 10-11 March, that the Constitutional Court had already resolved the issue in question, and not in your favour.

What conclusion should we draw about the Constitutional Court judges’ commitment to European values and respect for the rule of law if they find themselves able to issue a different interpretation to the words they considered and gave an unequivocal judgment on 18 months ago?  What conclusions should be drawn if those same Europeans, as well as Americans and Canadians, do nevertheless nod their heads when confronted with the form, not the content of democracy?

It is of course impossible not to agree with the European Parliament when it states that “Ukraine must now start to implement constitutional reforms in order to establish a viable and efficient system of checks and balances to define a clear distribution of competences between the President, the Cabinet of Ministers and the Verkhovna Rada”. Such reform, however, cannot be carried out at the expense of the Constitution and the electoral will of Ukrainian voters.  Potemkin democracy and disregard for the law lead only backwards, away from freedom.