09.12.2001 | V. Rechitskiy, Kharkiv, Constitutional expert of Kharkiv Group for human rights protection

The Ukrainian referendum


The Ukrainian referendum held allegedly by the people’s initiative occurred on 16 April and has already brought its first fruits. Law drafts on amendments to the Constitution have been suggested by the President in the Supreme Rada. The transformation of the Ukrainian Parliament from one-chamber to two-chamber one is somewhat postponed, but the reasons are purely procedural, since it is not so simple to rewrite one third of the Constitution.

Mass media reacted to the referendum differently: the dependent ones — by victorious relations, the independent ones — by almost a refusal to serve ‘to such people’, in the future. A new favorite object to be serviced — a ‘conscious and autonomous individual’ — has appeared instead of the ‘people’. Yet it is stupid to wave fists after the fight, the political roles have been acted, the numerical results have been obtained, although everybody — the power, the population and the Big Brother — know for which price.

It goes without saying that the referendum violated the Constitution, not so much in particular procedural guarantees of the sovereign will expression, or in entering amendments to the Constitution, which frightened the politically active Europe, but rather concerning Article 3 of the Constitution that declared that man’s dignity is regarded in our country as the superior social value. It happened that to respect the dignity of a Ukrainian citizen in this case was unreasonable.

The coercion to voting and the intimidation of voters seemed to be idiotic: physicians earning money from the state budget pressed on their patients, teachers earning money from the state budget took away school bags from their pupils. The idea of the latter stratagem was that parents could return schoolbags of their offsprings by the pre-term voting at the polling station located in the school. Professors of higher schools, who learned democracy in the West, were ordered to bring certificates that they participated in the festival of democracy. They had to learn that the liberal theory is one thing, and the will of the people is quite another. The professors complained in whispers, but were not ready to protest aloud. Perhaps, their liberal instincts needed much longer tempering in the West.

Those, who were not coerced to vote before the day D, got the opportunity to vote not only for themselves, but for their less active families. Passports or some other IDs were not required at the voting stations. I happened to see my friend to his polling station at half an hour before the end of voting. On the page with the list of voters there were four signatures from 25 – 30.

In Kharkiv everybody knew how this happening was organized. I phoned to my acquaintances in Lviv to learn how the referendum was going. They answered that they were having the same happening with the moral and political unity based on similar tricks.

The state television was lying with a pleasant mien. The chairman of the Central Voting Commission looked as a favorite of the people, he pressed some buttons on the computer keyboard, showing pictures and diagrams; he answered the questions of polite journalists even more politely. S. Naboka, a showman of the night TV carelessly dropped several days ago that he personally was against the referendum and that he considered one of the questions ‘idiotic’. For this he was sent away on a leave. Certainly, the Central Voting Commission registered tiny violations of the procedure, but they certainly could not tell on the total result. If some active TV journalist in some interactive feature could ask the viewers to telephone whether they were coerced to voting, he would get very intriguing results. But who on our TV wants to go on a leave or on a pension? The position of a state TV concerning the referendum and the interpretation of its results was expressed by the showman V. Lapikur, who is given much better time than S. Naboka. V. Lapikur is an ideological junior brother of V. Dolganov, who made a breath-taking career in the TV war with P. Lazarenko. Now P. Lazarenko stays in a political exile and prepares to speak in the American Congress. As to V. Lapikur, he is busy of branding the Ukrainian parliamentary delegation in Strasbourg. The chief of the latter, S. Golovaty, permanently warns the Ukrainian democracy against ‘Belarusization’. He is opposed by V. Lapikur, and they make another, bantam-weight, pair, beside V. Dolganov – P. Lazarenko.

In the Ukrainian information space there are people, who say that the honor of the Ukrainian democracy and constitutionalism was saved by the decision of the Constitutional Court. Such people are partly right. Indeed, the decision of the Court somewhat smoothed the pogrom intentions of the people’s initiative. If the court gave in, Ukraine would not have either Constitution, or Parliament, or the Constitutional Court itself. Having understood this, the Constitutional Court deleted the first and the last (which was called ‘idiotic’ by S. Naboka) questions of the initial formula. Thus, the court not only supported S. Naboka, but it saved the Ukrainian Constitutional structure from an immediate collapse. To be just, one should mention that the initial draft of the decision of the Constitutional Court, according to sufficiently well-informed sources, hotly agreed with the people’s attitude and supported all the questions. Nonetheless, the Constitutional Court obliged the power to introduce amendments to the Constitution according to the procedure of Article 155 of the Constitution. A representative of the Constitutional Court almost at once declared that the correct attitude to the referendum is to treat it not like a consultative (the PACE believed in it with naive optimism), but as imperative expression of the people’s will. At least, that was the idea, which, with the reference to V. Skomorokha, was made public through government TV channels.

It seems that even distant thunders from the corridors of the President’s administration appeared enough to intimidate the professional consciousness of the juridical elite of the country. Academicians and corresponding members of the right, rectors and deans of juridical institutes and law schools ran a race to the TV cameras to convince compatriots that now voting in the Parliament is obsolete and that the Constitution might be changed on the basis of the people’s will, the superiority of the right or both. 
‘Some did it with a bitter look,
Some with the flattering word’. 

 The bravest even dared to say that voting in the Parliament would be necessary, but it must express the will of the people.

Meanwhile, the common sense and the elementary knowledge of jurisprudence tell that voting of the people may not be mandatory for MPs. The Constitution of 1996 canceled the imperative mandate since people’s deputies stopped to be simple mouthpieces for expressing the people’s will and turned to its shapers. Instead of the former system of retranslating people’s interests by people’s deputies before the authorities another constitutional model was established, where people’s deputies had to formulate the interests of the people according to the deputies’ understanding. Correspondingly, the recall of deputies by voters was canceled. As to the law ‘On all-Ukrainian and local referendums’, it was adopted in 1991, and that was why it followed from the logic of the Constitution of the Soviet Ukraine (1978), in which the imperative mandate was established for deputies. That is why the old law on the referendum and the new Constitution are incompatible, since they express contradictory juridical paradigms. In fact, one can see here the contraposition of the totalitarian and liberal democracy. It is annoying, but this collision was not noticed either by the judges of the Constitutional Court in their decision, or by lawyers in their interviews with political reviewers.

Commenting this circumstance, one may believe that, according to the logic of the new Constitution of Ukraine, an MP, as the Westernized son of Camal described by R. Kipling, has the right to destroy his house to keep his country quiet. In the context of modern ideas on the political evolution, such a system, in spite of its external weakness, is a much more advanced concept than the hypocritical bolshevist ideology of the direct control of the masses. More confidence always means greater freedom, and the latter leads to a greater self-dependence.

If to accept this idea, then the automatic parliamentary voting for the amendments becomes obviously absurd. It is consoling that the given referendum is absurd in many ways. At the very root of this national political adventure the executive power leans on law-enforcing bodies and the post-totalitarian fear of the population, thus demonstrating its confusing and insincere plan for the people’s initiative. Then, using a chain of humiliations, almost physical, the power forced the people to support itself after all. Then the victorious people’s will is ordered to break the spine of the Parliament and at the same time to kick the stool from under the feet of the Constitution. What will we have as a result?

It is obvious that if the President’s right to disband the Parliament which could not shape the majority within a month will penetrate the Constitution, this will mean practically complete subordination of the Parliament to the President. The term ‘majority’ here is just a synonym of the political subordination. After the introduction of this amendment to the Constitution any unacceptable for MPs law developed by the President or the cabinet of Ministers could be turned into a club that will disband the Parliament as policemen clubs disband demonstrations. After this amendment it is enough to suggest to the Parliament any law of the type ‘On the use of toad-stools’ and then disband it for the non-constructive difference of opinions.

Actually, the presidential demand of the efficient majority hides an implicit demand of the President to the people to be more agreeable and ‘homogeneous’. Unlike any unique ruler, the Parliament is always a political reflection of a rather complicated structure of people’s representatives. This fact does not suit the President, as well as the executive power consolidated by him, most of all. One way or other, but reducing the idea of the ‘people’s referendum’ to its elements, one has to come to a simple conclusion: bureaucrats believe that they are insufficiently obeyed. Thus, the obedience to power must be essentially increased, and the power is meant to be the ‘real’ one, the presidential power.

From the viewpoint of the philosophy of the right the matter looks so: the Ukrainian professional authorities, as well as their Belarussian counterparts, dodge real economic and political reforms, and it became clear that they feel themselves uncomfortably in the political suit made by European and American fashions. In the beginning the authorities thought that the suit suited them, but in the course of time it became obvious that the suit did not fit because it hindered the movement of leviathans of the power. In other words, the actual intellectual level of the Ukrainian executive power appeared to be catastrophically small compared with the own Constitution. The power appeared to be unable to reach the level of the national Constitution and decided to decrease this level to its own. G. Soros used to say quite rightly that the modern democracy and the open society combined is a very complicated machine.

Opponents would say that people’s deputies are not sinless and even prone to theft. That is right, Ukrainian MPs are far from being perfect. To be sure it is enough to look at Article 33 of the law ‘On the status of people’s deputies of Ukraine’ where it is said that ‘remuneration of labor of people’s deputies of Ukraine is done according to the norms established by the Supreme Rada of Ukraine’. In such countries as the USA, Great Britain and Germany the deputies’ remuneration is approximately equal to the salary of a professor of a prestigious university, while in Ukraine an MP’s salary is 5 – 6 times greater than that of a professor. The higher the power, the greater is this discrepancy, which is the favorite topic of Ukrainian mass media. The salary of the President of the USA is about two times greater than that of a university professor, while in Ukraine the ratio will be about ten times. Similar arguments can be easily applied to the considerations of inviolability. The President of any country needs the inviolability not more than MPs. A purely arithmetical argument shows that the President’s inviolability is more dangerous. In order to get a tyrant the people must make a mistake at the presidential election only one time, while a corrupted deputy will be dissolved among its colleagues, who are statistically honest. One may think that the potential danger of a single MP is developed by a fraction where the numerator is one and the denominator is the total number of deputies. In the case of the President the denominator is one.

A reader, who was sufficiently patient to read to this place, may say that I exaggerate, and all said above is not very essential, since the main problem of the Ukrainian politics is quite another, starting with the Central Rada, Directory, M. Grushevskiy, P. Skoropatskiy or even S. Petliura. For example, the problem is that, knowing well the Ukrainian history, the current President just tries to overcome the age-old political lack of discipline of the Ukrainian society. Maybe, the President, while risking his international reputation, tries to direct his motherland to the way, approved by his almost prosperous neighbors. For many not indifferent citizens it is quite clear that Ukraine needs a civilian Pinochet, who will without hesitations and compromises protect democracy and market freedoms. I am sure that in the modern political or — wider — intellectual spectrum of Ukraine we see figures who think so: Ukraine is not a very complicated state, and we do not need to confuse ourselves in political and juridical mazes of the Western liberalism. It was not accidental that V. Vinnichenko, living in Paris, compared Ukraine to a naive provincial woman. V. Gombrovich, living in Argentinean emigration, was sorry that in Poland there was not a single writer of Balsac’s or Dostoyevskiy caliber. We, in Ukraine, should rather be sorry that we had not an author of V. Gombrovich’s caliber. In the modern Ukrainian periodical literature it is easy to find such an argument that, unlike Lukashenko and Central Asia shepherds of nations, L. Kuchma tries to consolidate not a feudal socialism, but almost classical capitalism. And for such a sacred goal one must be prepared to suffer.

Of course, for the sake of good goal one may suffer a little and even sacrifice something. Yet, the prospects of fast coming capitalism on the post-Soviet space, as I. Valerstein believes, are very dim. Instead, Ukraine has much stronger chances to become a passable semi-periphery of the modern civilized countries. Frankly, no one knows, which ambitions we can realize. But to make us to apply some efforts, we previously must get rid of insulting efforts applied to us by the authorities. I am sure that it is worthwhile to begin with providing some guarantees of the inviolability of the dignity of the still ‘lost Ukrainian citizen’.

28 April 2000

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