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08.09.2005 | Viktor Kolisnyk, Doctor of Law, Kharkiv

FRUSTRATING THAT THE DECEPTION AND INSINCERITY CONTINUE…

   

It is frustrating. Frustrating to once again have to prove elementary things, judicial axioms, which do not need to be proven. The Resolution of the Supreme Court is final and not subject to appeal. Everybody knows that, including first-year students. This means that any public assessment of this decision, commentaries, discussions about it, and particularly publicly expressed doubts as to legality (or constitutionality) of this decision are unacceptable and indicate only lack of respect for the court. For the Supreme Court. This is like creating a din in the hearings chamber of a local court while a sentence is being passed, interrupting the chairman with cries of «Freedom for Yury Detochkin!»

It is frustrating. Frustrating because Parliament at such a difficult time is haggling over this somewhat strange, and too ‘raw’ political reform, the sincerity of whose initiators arouses serious doubts, given that for so long the head of the State bewailed his insufficient powers and called consistently for them to be increased, and now, when he no longer needs them (because his term of power is coming to an end), he has decided to «nobly» shed them, handing them over partly to Parliament and to the Government.

It is frustrating. Frustrating because again some sensible, rational, even wise politicians are letting themselves get offended with other politicians for unfulfilled agreements and are refusing to work with them or look for compromise. And that at a time when parliamentarians should have jointly demanded the implementation of their own resolution of 1 December 2004 on dismissing the government, which was the chief culprit in causing the political crisis and whose miscalculations would almost certainly suffice to warrant 10 dismissals.

It is frustrating. Frustrating, that such haggling is taking place when the massive vote-rigging during the second round of voting is well-known, and when it is obvious to all normal citizens and unbiased experts that only an infintessimally small part of a huge iceberg of violations committed during the elections was made public in the chambers of the Supreme Court. Parliament should, therefore, be primarily concerned with strengthening legislative guarantees aimed at minimizing violations during the re-run of voting, and not make use of the opportunity to «push through» its political reform. And in general, what should one think of a political reform which is carried out in haste, without comprehensive analysis and open academic discussion? One can hardly consider the analysis of amendments to the Constitution which was held, in general, at artificially organized regional public forms in conditions of previously determined unanimous support for the reforms in the spirit of «yes, sir, we approve», as having been in any way comprehensive, thorough or in-depth.

And is the reform expedient in any case? Is it worth amending a Constitution in accordance with which we have still never actually lived? What has the Verkhovna Rada done to ensure that the Constitution works in full force? Parliament has still not even been able to pass dozens of laws which, following from directives in the Constitution, are mandatory. To this day there are no laws on the Cabinet of Ministers, on the central bodies of executive power, on the procedure for publishing laws and other legislative norms, and a lot of others. This is already the third parliament which cannot pass a law on regulations for the Verkhovna Rada. It is not clear why it is necessary to make the role of Head of State largely declarative (and what sense there is in having this person directly elected by the population), and to make the position of Prime Minister more powerful. Perhaps it would be better to move differently, declaring the Head of State to be at the same time Head of the Government, that is, for the Head of State to personally head the executive branch of power. That way, all would be in place in the system of State power and the balance between different branches of power would be ensured. For some reason this system works well in the USA, but is supposedly not appropriate for Ukraine

It is frustrating. Frustrating that during the elections a large percentage of members of electoral commissions received envelopes with certain amounts of money, that is to say, effectively they were bribed, since they knew very well that these ‘little gifts’ were from a certain candidate, and they were being encouraged to understand that they should not pay attention to the odd «violations». This means that they were effectively bought. Others were intimidated into signing blank, unfilled-in protocol forms just in case, for example, in case the result of the voting proved to be different from that expected in particular offices of important officials. That way it would be easy to adjust the figures. This is indeed what happened in many cases. We can cite another example. Before the elections, members of Territorial Electoral Commissions went around visiting voters, asking if they were going to vote for the State candidate. Where they received a negative response, more often than not, it was precisely in these names that mistakes occurred on the voter lists. Surprisingly enough, voters were extremely active and in large numbers approached the Territorial Electoral Commissions or local courts to have their right to be on the voter list confirmed, and having received the appropriate reply, returned to the polling station and did indeed vote. As for their «double» with the mangled surname, somebody else voted for him or her, sometimes with blocks of ballot papers (a form of «bulk» voting). There were also numerous other schemes devised for manipulating votes. It turns out, though, that due to haggling and mutual insults in Parliament there may not be enough time to form new electoral commissions, and then these same «experienced» members of commissions, who have already «made their name» with their civic position and who averted their eyes from the violations, deliberately not noticing or actually encouraging them, will again organize and run the repeat round. Will we not then see the same in the December re-run that we saw on 21 November?

It is frustrating. Frustrating that some State Deputies, politicians, high-ranking officials in public appearances and interviews repeat over and over again that more than half of the electorate voted for one of the candidates, and far less for the other (even giving exact figures). This is nothing less than cynicism and hypocrisy since in the chambers of the Supreme Court it was proven that the scale of the violations was so great that it was impossible to determine the results of the election. Thus, references to such figures are not only incorrect, but actually against the law. Yet such «inflated» figures are heard again, just as in the old times when reports and statistical data were unthinkable without such adjustments. As though the Resolution of the Supreme Court of 3 December 2004 had never happened.

It is frustrating. Frustrating because falsifications and manipulation of public awareness are continuing after the second round of voting, and citizens are again, as during the pre-election campaign, being forced (sometimes even on threat of dismissal) to take part in mass measures in support of the pro-regime candidate. Employees of State sector organizations are taken (with transportation costs at the expense of taxpayers) from different parts of the region, without even being asked how they feel about such measures. As if they weren’t free people (teachers, doctors, students, etc), but slaves from Ancient Rome.

It is frustrating. Frustrating, because the same officials who involved their subordinates in election campaigning, forced them to vote in a certain way, organized the rigging of election results, took a direct part in this process or simply consciously chose not to notice violations of election legislation (although it was they who were supposed to and could have prevented such violations), now have an interest in new falsifications and adjustments, since even a remote resemblance to the results of 21 November will work in their favor, towards justifying their actions or inaction. For then they will be able to claim that there were no administrative resources specifically in their district (city, region) during the elections. Such officials, or more accurately, a certain number of them, not only cherish the hope of a repeat of such a result or one similar, but will also do everything in their power to achieve it.

It is frustrating. Frustrating that despite the fact that hundreds of thousands, and maybe even several million citizens who have had enough of hypocrisy, deception and double standards (which have again become part of big politics, and our everyday lives) have come out (keeping in mind rotating shifts) on to squares, these voters are assiduously ignored (first of all by the Head of State) and an attempt is made to convince themselves and those around, that this is not «all the people», but rather, as ORT[1] put it, a group of «extreme young hotheads».

And some of our fellow Ukrainians, cocooned in their fairytales and outdated myths and convenient stereotypes, look indifferently at those who stand up openly against the falsification not only of the elections, but of all our life in society, laugh or sneer at them, spread various rumours, gossip or absurdities about them, labeling them as «Bandera-supporters», «nationalists», or just «people with a screw loose» etc. Those who had the courage to come out on to the squares were very different, but they were united by one thing: the desire to free society from deception, dirt, lies and convention, when they say one thing, think another, and do something entirely different. Such a society has no future. It would be interesting to know whether the critics of the «Orange Revolution» have thought at all about what our society and State would have been like if people had not come out on to the squares, but had gone on quietly accepting injustice, open contempt of election legislation and remaining silent (saying «I’m alright, mate» and «my vote doesn’t mean anything, they’ll count as they want, whatever»)? The course of events could have been different. Then, probably, there wouldn’t have been emergency sessions of Parliament, there wouldn’t have been the hard-hitting Resolutions of the Verkhovna Rada of Ukraine of 27 November 2004 and 1 December 2004, Parliament would not have declared the results of the second round of voting on 21 November 2004 invalid, there would have been no vote of no confidence in the Central Election Commission from the Verkhovna Rada of Ukraine. Nor would there have been the Verkhovna Rada’s vote of no confidence in the Cabinet of Ministers of Ukraine. There would probably have been no session of the Supreme Court with its live broadcast, either, nor the public announcement of the Supreme Court’s Resolution of 3 December 2004. That is, if citizens had not supported the nationwide action of civic disobedience, it is entirely possible that the legislative would not have been able to even attempt to fulfill the function of parliamentary control it is empowered with, and the court branch of power would not have guaranteed on a nationwide scale the restoration and defence of citizens’ voting rights. The mechanisms for implementing State power, therefore, demonstrated their entire incapacity, inertia and ineffectiveness. It was only civic activity which aroused this mechanism and forced it to work, or, more accurately, certain parts of it.

It is frustrating. Frustrating that society is again having the idea of «federalism» deftly foisted upon it by certain officials, who, judging by their public utterances, have only a foggy concept of federalism, the granting of autonomous status and of the fundamental principles of the territorial structure of the State. Both the road to federation, and that towards the creation of autonomous areas (federalism and granting autonomy are not the same thing) are very, very complicated. Without going into detail concerning the financial and economic justification for the possibility of self-sufficiency, self-reliance, and self-finan­cing of potential subjects of a possible federation, we would note that, according to data of analysts, Donbass has in the last years received massive subsidies from the centre (cf. «Dzerkalo tyzhnya» № 49 from 4 грудня 2004, p. 4 and p. 9), while the financial recalculations to the centre have not been as substantial as certain officials would claim. However, let us address constitutional and legal issues. Firstly, in order to turn Ukraine into a federal republic, it would be necessary to make amendments as a minimum to Part 2 of Article 2, and to Article 133 of the Constitution of Ukraine,and if the need arises to change the name of the State, then Article 1 of the Constitution of Ukraine as well, and therefore to a lot of other constitutional provisions, and also to other regulations, as it will definitely be necessary to redefine the authorities between centre and the subjects of a future federation. This is an extremely complicated, drawn-out and laborious task. It would require lengthy scientific discussion in order to work out a well-considered, high-quality and organic Draft law for introducing amendments to the Constitution. Then, in order to pass it, it would be necessary to gain a majority in parliament of 300 votes, and to definitely hold a nationwide referendum. These are precisely the mechanisms for introducing amendments to Sections 1, III and XIII of the Constitution of Ukraine. It is not necessary to be Pavlo Hloba[2] in order to state already: it is most unlikely that the majority of citizens of Ukraine would today be prepared to accept and support the idea of turning our State into a federal republic. It would take several years (possibly several decades, even) in order to persistently popularize this idea and gradually convince the majority of citizens of its advantages for Ukraine. Secondly, as demonstrated by the experience of other countries, the subjects of a federation usually have, in addition to all other aspects, their own constitution, parliament and legislation. Already now, in conditions of unitarism, we are by no means always able to agree different legislative acts one with another, and with constitutional norms, and the Constitutional Court is not able to review the vast bulk of legislative norms, determine whether they are constitutional, and to give an interpretation for all contradictory and imprecise provisions of legislation. It is especially difficult to agree the content of subordinate legislative acts with current laws. With the appearance of a new level for constitutional regulation the problem would immediately arise of bringing addenda to the general constitution into agreement with the constitutions of members of the federation. However, even more complicated would be the problem of bringing legislation of the whole State into agreement with legislation of the members of the federation. This is a problem which is a permanent headache for any federation, while in the Ukrainian variant it could totally paralyze the entire legal system and State mechanism. Ukrainian society would be in danger of plunging into an endless chasm of agreements, discussions, forums, conferences, etc (as we have already seen with the content of the new Constitution in 1991-1996, when unlike our neighbours we wasted much too much time and for precisely this reason fell hopelessly behind in drawing up and passing the most important unified laws). Therefore federalism, rather than being the road to prosperity of the regions, is first of all the road to a new mass of problems which have already accumulated in too great a number in society and in the State mechanism. Therefore, a circumspect politician, and even more so, a legal specialist will always respond with great caution to the calls of newly-ledged federalists. Moreover we already looked over the idea of federalism during the period of drawing up and discussing numerous drafts of the Ukrainian constitution in the first half of the 90s and then the vast majority of specialists agreed with the thesis that most acceptable for Ukraine was precisely a unitary system. This does not preclude the possibility of perfecting the territorial structure of the State by means of decentralization and significant widening of the powers of local bodies of State power and bodies of local self-government, most particularly in order to ensure the comprehensive and balanced socio-economic development of the region. The State should be interested in this since, having freed itself from petty tasks in looking after the regions it will be able to carry out national functions (foreign policy, national security, defence potential, nationwide programs etc) more effectively. However this can be achieved without a fundamental change in the form of state-territorial structure.

7 December 2004



[1] ORT is one of the Russian State television channels. It was particularly active in presenting the Orange Revolution in a very negative light. (translator’s note)

[2] Pavlo Hloba – a popular astrologist

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