Open letter on non-transparent and criminal activities of power
Respected subjects of political-constitutional process!
Make an effort and read the «Comment of the Kharkov group for human rights protection on the political reform in Ukraine (by the state on 4 November 2004)», which is adduced below.
This autumn, autumn of 2004, is epoch-making for democratic Ukraine, and therefore, in our opinion, -- for democracy in the entire post-Soviet space. And you still have your head in the faraway clouds of isolated from people, socially, culturally and morally alien to people, degenerated and corrupted power; you invent more and more methods of realization of the reform invented by power.
In the opinion of civil society, all these attempts with regular disregard of the fundamental principle of democracy, the local self-government, are the demonstration of obvious and consistent anti-national plot behind the back of society. Now you want to use the activities of voters for realization of this reform.
Do you have right to trade with votes of citizens, who still believe in your decency? To trade for realization of the constitutional reform, which is advantageous for power, but is absurd from the viewpoint of interests of civil society, the reform, which would accomplish the process of split between the power and society. This split is seen well for a long time, but you still hope, like formerly, for some mysterious military force, for the effect of mendacious promises and insolent misinformation, you hope to secure for yourself the role of almighty leaders. You try to drown in the flows of dirt and demoralization any attempt of public and personal moral self-knowledge, doing your best for restoration of the former atmosphere of fear and hopelessness. At the same time you intimidate Ukraine and the entire world with terrible split into separate regions and loss of Ukrainian independence. All might of the present state mechanism is mobilized just for realization of such split as only possible tool for preservation of your authority, which is just another incarnation of the «historical» absence of liberty. However, the moral mobilization of Ukrainian society was not stopped either by the notorious bygone «five minutes of hatred», or by the so-called «facts», which were thoroughly elaborated by the authors of «temniks» in order to unleash the interethnic, inter-confession, inter-regional and inter-language intolerance, hatred and immorality, or cynical demonstrative support by all TV channels of the fascist-schizoid thugs. Today the Ukrainian society again, like in 1990-91, demonstrate very encouraging signs of convalescence and renovation, obvious and non-ambiguous signs of resurrection of moral unity of the society and its health.
And the fact that, in the first tour of Presidential election, the power has failed in mobilization of all forces for repetition of the scenario of the election in some regions of Western Ukraine in 1946 (when the bulletins were already «correctly filled» and voters had only to put the bulletins to ballot boxes), does not mean that the power will be able to do that on 21 November: the voters have already become aware of exertion of pressure on their consciousness practiced by power and will be ready to repulse the further attempts. And it is already impossible to stop this moral mobilization of the society by any technologies and anniversaries, even in the Lugansk region. Any lie is disgustful, and lie of the power is hundred times more disgustful.
Zinoviy Antoniuk, a publicist, translator, participant of Ukrainian national-democratic and human rights protection movement, former political prisoner
Comment of the Kharkov group for human rights protection on the political reform in Ukraine (by the state on 4 November 2004)
By the state on 4 November 2004, the political reform is represented, in juridical sense, by law draft No. 1480 of 21 June 2004 on introduction of changes into the Constitution of Ukraine in the final version of the Temporary special commission of the Verkhovna Rada of Ukraine for elaboration of law drafts on introduction of changes to the Constitution of Ukraine.
The draft underwent the necessary procedure of consideration in the Constitutional Court of Ukraine and got the corresponding sanction of the Court on its presentation for voting to the Verkhovna Rada of Ukraine.
Law draft No. 4180 essentially differs from law draft No. 4105 in the form, in which it was considered by the Verkhovna Rada of Ukraine and did not get the necessary qualified majority of votes (300). At the same time, law draft No. 4180 also differs now from the draft with the same number, which was considered by the Venetian Commission in December 2003 as «the third law draft».
It is known that, in its conclusion of 12-13 December 2003, the Venetian Commission pointed out: «draft of the law on introduction of changes No. 4180 is identical to draft of the law on introduction of changes No. 4105, except the transitional provisions on appointment of the time of election and coming into force of constitutional reform» (item 88). Now this identity is liquidated.
In the present, renovated, form law draft No. 4180 noticeably differs from its «predecessors» (No. 4105 and the first version of No. 4180), since it envisages the election of the President of Ukraine at nation-wide election. And the draft, which was considered by the Venetian Commission in December 2003, envisaged the election of the President of Ukraine by the Parliament – the Verkhovna Rada of Ukraine.
In general, renovated law draft No. 4180 is much less radical regarding the existing text of the Constitution of Ukraine than the mentioned previous drafts. Yet, even in the new form it, in our opinion, will not promote positive changes in political and constitutional system of the Ukrainian state.
As well as its imperfect «predecessors», the law draft envisages the election of peoples deputies of Ukraine on the purely proportional basis. It establishes, on the highest constitutional level, the same election procedure, which is already envisaged by operating laws. However, we reckon that the election of MPs on the purely proportional basis is evidently precocious and insufficiently weighed, theoretically and practically, attempt to improve the Ukrainian constitutional and, in particular, electoral legislation.
Being a result and an element of the well-known political compromise, the proportional system of election to the Ukrainian Parliament exists, for the present moment, on the level of ordinary law. It should be reasonable to test practically this new for Ukraine system of election to the Verkhovna Rada, and only then, depending on the results of such experiment, to discuss the question about the introduction of this system on the constitutional level. Now it happens that the deputies, excited with political struggle and filled with reformative ideas, try to change the text of the Constitution in favor of the scheme, which did not show itself positively in practice yet. In constitutional sense it looks, to put it mildly, non-optimally.
Law draft No. 1480 also introduces the possibility (and, in fact, the necessity) of unification of a deputys mandate with the status of a member of the Cabinet of Ministers of Ukraine. In our previous comments concerning other reformative ideas of similar kind, we have already said that such order undermine, from practical and formally-juridical viewpoint, the provisions of the operating Constitution of Ukraine: «The state power in Ukraine is realized on the basis of its division into legislative, executive and court branches» (Article 6 of the Constitution of Ukraine).
Evidently, that, giving its permission for the reform, the Constitutional Court again was guided not so much by juridical and legal, as by situation-political purposes and factors. The constitutional norm about the separation of powers must not be a declaration about intentions, but a strict juridical construction protected from changes with special procedure of introduction of changes and amendments into the first section of the Constitution of Ukraine! The modern constitutionalism can demand, to a greater or lesser extent, the separation of powers. Yet, if separation of powers would be declared as a concrete principle (a keystone) of the operating Constitution, then it should not be ignored. The idea of separation of powers exists in the Ukrainian constitutionalism since the times of the Constitution of Pylyp Orlik. This principle was present in the Constitution of the Ukrainian Peoples Republic of 1918 and is an important element of the Ukrainian constitutional tradition. However, law draft No. 1480 evidently ignores the concrete norm – the principle of separation of powers. If the political reform in its present form would be introduced, this would mean that the Constitution of Ukraine would become even more demagogical and formal as to its most important, key provisions. This key principle supplements the already existing social-economic rights of citizens, which are, in fact, fictitious and unprotected with court procedure.
Law draft No. 1480 also increases the term of authorities of the Verkhovna Rada of Ukraine to five years. This norm is not principal, so it obviously cannot be a sufficient argument for breach of constitutional integrity. The draft also establishes radical demands on incompatibility of deputys mandate of an MP with other kinds of activities prohibited by the Constitution. So, non-execution of the demands on incompatibility is turned into the ground for fast and, in our opinion, too radical termination of deputies authorities.
Besides, law draft No. 1480 introduces the rule about deprivation of an MP of deputys mandate «if the MP elected from a political party (electoral bloc of political parties) is not a member of deputies fraction of this party (electoral bloc of political parties) or in the case of retirement (expulsion) of the MP from the composition of such fraction».
Since the law draft does not provide the exhaustive list of the conditions, under which an MP can be expelled from the fraction, this means that the lot of deputies fully depends on the position and will of leaders of the fractions (in fact – the party leaders). It is clear that, under the real circumstances of time and place, this means almost full extermination of originality of political position of peoples deputies, introduces party control over their opinions, words and deeds, de-facto turns each of them into the voting machine. We believe that this idea also embodies absolutely unjustified, primitive, in political and juridical sense, and obscurantist «arithmetism» of parliamentary activities.
People (so, deputies too) are complicated political creatures, it is peculiar to their psychics to disagree, they are guided, in their conclusions and decisions, not only by simple political reckoning, «pluses» and «minuses» on the scales of reality, but also by keen intuition, political subconsciousness, etc. Yet, the modernizers do not want to understand this and to take it into account in the law draft suggested by them. One may even say that, in the part of definition of the principles of party-deputies discipline and fraction orderliness, the law draft is based on a kind of vulgar determination, scholar obedience, subordination to the ideas of collectivism of the worst sort.
However, we want to remind to the reformers that a modern parliament of the European type is regarded as valuable just for its mental variety, ideological polyphony, but not for the political monotheism in the ranks of party pawns.
Really, is it reasonable in our situation to have 450 mentally lively peoples representatives in the parliament? If they must obey the absolute fraction (party) discipline, then there is no real need to gather them in the room for plenary sittings. The party bosses (leaders of fractions) would, according to the results of the proportional election, obtain the proper number of plastic cards for voting and would be able to fulfill this function quite successful. Some party leaders would have more such cards, and some – less; anyway the alive and «pluralistic» deputies would not be needed.
In our opinion, there is one more system drawback in law draft No. 4180: attribution of some ministers of the Cabinet of Ministers of Ukraine (in the sense of their appointment to posts and factual subordination) to the President of Ukraine, and other ministers – to the Verkhovna Rada and the Prime Minister of Ukraine. We have already pointed out that, as a consequence of the new order of appointments and subordination, the foreign and internal policy of Ukraine would be in different hands.
According to law draft No. 1480, the post of the President of Ukraine is not simply representative post, but really influential one regarding concrete executive functions (foreign policy, internal security and defense). So, in practice this would result in noticeable deformation of executive vertical, as well as unproductive competition of top state posts of President and Prime Minister of Ukraine in the framework of one branch of the state power.
If to recollect that the competition of the posts of speaker and President already exists in out country, then the logic of constitutional reformers seems rather incomprehensible.
In other words, the competition of top posts that belong to different branches of power is constitutionally motivated and normal. At the same time, it is impossible to understand and support, either theoretically or practically, the competition of top posts in the framework of one power branch (in our case – the executive one).
Probably, the authors of modernized draft No. 1480 looked for some strategic compromise, but the suggested solution became the compromise of short-term conjuncture tactics. So, the obviously lame, criticized by the Venetian Commission, tactic scheme is again presented on constitutional level. We are sure that this decision and this version of political reform would make Ukraine not a parliamentary republic, but a strange conglomerate, extremely inconsequent in constitutional sense.
The fact that, according to the renovated version of draft No. 1480, the President of Ukraine has the right to disband the Parliament in three cases (every of them may be caused by many reasons) makes illogical the thesis about transformation of Ukraine from presidential republic into parliamentary one. If the authorities of the President concerning the disbandment of Parliament increased three times in comparison with the current state, then what can be said about the «deliberate degradation» of Presidents status with regard to the Parliament?
Although the President directly participates now in forming of the Cabinet of Ministers and appointment of the heads of regional state administrations, in practice the ministers and heads of regional administrations are not less dependent on the Prime Minister too. After giving the «start» to the ministers of the Cabinet and to heads of state administrations, the President actually leaves them under the command of the head of the Cabinet. Naturally, if the Ukrainian governors were elected in the regions, instead of their centralized appointment, this would become an adequate reason for the constitutional reform. Yet, obody says about the election. The main principle of direct dependence of governors on the center is not changed by the reform.
As to the connection between the President and the Verkhovna Rada of Ukraine, law draft No. 4180 not only does not decrease it, but even increases due to the essentially higher level of dependence of the lot of the Parliament on the political position of the President.
Thus, if the reform weakens the influence of the President in the framework of the executive branch of power, then it should be regarded as a change of political tactic. If, at the same time, the Presidents control over the Parliament increases in several times, then it should be regarded as a change of political strategy, the change, which is directed absolutely not towards the parliamentary republic. So, the reform makes Ukraine not less, but, maybe, more presidential.
Other innovations are not principal, in our opinion. They obviously are not worth of transgression of integrity of the constitutional text and may not be estimated positively from this point of view.
As to the concrete circumstances, the political atmosphere of introduction of constitutional innovations in the period between two tours of presidential election, they seem rather absurd. Firstly, on 31 October Ukrainian citizens voted for the President with the existing on that day constitutional authorities. Secondly, the change of constitutional status of the President between two election tours is the jugglery with constitutional principles in the manner of S. Gavrish. In metaphoric sense all this looks as if a man bought a cat at the market, but found a dog in the sack after coming home.
After all, the constitutional reform in Ukraine, in its modern form, is endorsed not by principal political forces (even if to ignore the «mass, but insignificant» (S. Gavrish) misuses at the election: the leader of the races is a tactical opponent of the reform), but the political outsiders – communists and socialists. And this fact should worry us. It is obvious that the moral right to change the Constitution of Ukraine must not accorded to those, whose actions do not agree with the logic of our progress…
 The comment was prepared by V. Rechitskiy, the constitutional expert of the Kharkov group for human rights protection