Will the administrative resource be legalized?
The authors of the request believe that the use of the mentioned provisions of the Law generates a collision, since item 1 of Article 64 of the Law “On election of the President of Ukraine” completely prohibits to the officials of organs of executive power and local self-government to take part in pre-election agitation, and item 15 of the same Article prohibits to the candidates to Presidents post to engage their subordinates in election campaign only during labor hours. The constitutional request reads: “This collision not only breaks the integrity of the normative material, but also can essentially influence the course of the election campaign, since, on the one side, it contains the threat of the ungrounded bringing to responsibility of the candidates, who, being governed by item 15 of a 64 of the Law, engage their subordinates in the election campaign, and, on the other side, restricts the right of citizens to support their chiefs, who are registered as candidates to the post of the President of Ukraine”. In this connection the authors of the constitutional request ask the Constitutional Court to interpret immediately a number of legal terms and norms, which concern the probable participation of the officials of organs of executive power and local self-government in the election campaign.
In short, two top officials of the Kharkov oblast set a problem to the Constitutional Court, which it never considered before. And not only because less than six months has passed since the adoption of the Law “On election of the President of Ukraine”, and this law is not sufficiently run in yet, but also because the so-called constitutional request curtains the wish of the officials to legalize the widespread practices of conduction of election campaigns with the use of their posts and authorities, that is the methods, which are called “administrative resource”. Now the cost of such administrative resource is equal to the cost of victory for some candidates, so I can predict that they would continue their struggle for its legalization using all possible and impossible methods.
The considered request obviously can be related to such methods, since it is openly far-fetched and legally ignorant. Neither the head of oblast state administration nor the head of the oblast council are the subjects of the right to constitutional request, so they may not turn to the Constitutional Court for the official interpretation of laws.
Maybe, they wanted to turn to the Court as common citizens? Then why they gave their posts and referred to Article 41 of the Law “On Constitutional Court of Ukraine”, which contains the exhaustive list of the subjects of the right to constitutional request? It is also incomprehensible why the authors of the request referred to the Law “On ombudsperson”. Maybe, they hoped that their initiative would interest ombudsperson Nina Karpacheva? Yet, we reckon that she will not defend in the Constitutional Court the interests of the officials, who violate the right of voters for free expression of will. At that, the scale of these violations worry more and more both Ukrainian and world community. Recently six former USA congressmen, who visited the Kharkov, Poltava and Sumy oblasts, expressed their anxiety about this problem.
Well, let us imagine that the Constitutional Court will ignore all procedural violations, will start the investigation of the case after the request by E. Kushnariov and O. Kolesnik and will suddenly acknowledge that the heads of local state administrations are not subordinate to the Prime Minister, since they are formally appointed to their posts and dismissed by the President after the submission of the Cabinet of Ministers of Ukraine. You see, nothing is said about the Prime Minister. So, they are not responsible before or accountable to the Prime Minister, but are subordinate to the President and the Cabinet of Ministers. Taking into consideration the fact that the status of the Cabinet of Ministers, as well as the status of the Prime Minister, is not properly established by Ukrainian laws, then the Constitutional Court may easily come to the conclusion that the place of employment of the Prime Minister is the structure of the Cabinet of Ministers, but not the entire system of the organs of executive power, which includes local state administrations too. In practice this means that the candidate to Presidents post Prime Minister of Ukraine Viktor Yanukovich will have the right to engage in his election campaign the enormous army of officials, which work in oblast and district administrations, as well as service transport, communications, rooms, copying equipment disposed by them. Even if all this would be done after the labor hours or on days off, all the same it would be done with wild enthusiasm, since this enthusiasm would be inspired not by powerless heads of election headquarters of a candidate to presidency, but by the heads of local state administrations dependent on the pro-power candidate more than somebody else.
Everybody know that many of the candidates carry out the agitation for the Prime Minister under the guise of various labor conferences and seminars, but they have to act carefully taking into account the law and numerous competitors, who attentively supervise the actions of the power. Soon the international observers will join in this work, and then the “only candidate” would not be able to avoid the scandals and sanctions on the side of the Central election commission.
The first ground for such scandal was observed on 14 July 2004, when Kharkov authorities organized a pompous meeting in the support of Viktor Yanukovich. In order to demonstrate the “nation-wide love” to the Prime Minister, more than 50 thousand persons, mainly workers of budget organizations and great enterprises, were driven to the central square of the city. Later the Kharkov governor denied the accusation of the use of administrative resource, referring that the mass action had been organized by the local organization of the NDP. Yet, Mr. Kushnariov forgot to mention that it was he, who headed the oblast organization of this party, and the city organization was headed by Kharkov mayor Vladimir Shumilkin. Thanks to these state officials, Kharkov has become a reservation of administrative resource, where the “correct” political views is a precondition for successful career, business and creative work. And the fact that the constitutional request, in which the oblast leaders called into question the legal norms, which restricted the administrative meddling to the election process and the articles envisaging the responsibility for such meddling, was created in Kharkov is not an occasion. This is a precedent.
Evidently, now these restrictions and prohibitions are not sufficient for guaranteeing of honest and transparent election. So, I want to suggest the legislators to introduce changes into the laws of Ukraine, which would restrict the participation of certain categories of state officials and officials of the organs of local self-government (say, 1-3 categories) in the political parties, like it has been done recently regarding the officers of tax organs. Firstly, this will substantially restrict the motivation of use of administrative resource for the achievement of political goals, and, secondly, would direct the energy of the party functionaries to the solution of social and economic problems of their voters, about whom they “care” so much. I hope that after this the questions would not arise, to whom the heads of town administrations are subordinate and to whom they must serve.
A concrete question demands a concrete answer.
“Prava ludyny” commentary. The request directed to the Constitutional Court by Evhen Kushnariov and Oleksiy Kolesnik demonstrates a certain legal collision. On the one side, state officials should not use their power for the support of concrete candidates. On the other side, they also have their own views, sympathies and antipathies and may interpret the prohibition to take part in the election campaign as restriction of their freedom of expression. In the countries with well-developed party system this collision is neutralized by the established practices and public control over election campaigns. As to Ukraine, we reckon that item 1 of Article 64 of the Law on Presidential election may be regarded as a proportional and reasonable restriction, since its abolition would result in legalization of the use of administrative resource in the interests of the pro-power candidates. The examples of such use could be observed during the parliamentary election in 1998 and 2002, presidential election-1999 and the referendum.
As to the form of the appeal to the Constitutional Court, it is astonishing. The Constitutional Court should reject this request, since, according to Article 41 of the Law on the Constitutional Court, E. Kushnariov and O. Kolesnik may not be subjects of a constitutional request (although they, for some reasons, refer just to this article). They have the right to hand a constitutional request as Ukrainian citizens in accordance with Article 42 of the Law, but they had no grounds (ambiguous interpretation of the provisions of the Ukrainian Constitution or laws of Ukraine by courts or other organs of state power, which resulted in violation of their rights) for this. So, let us wait for the reaction of the Constitutional Court…