OPEN LETTER FROM THE KHARKIV HUMAN RIGHTS PROTECTION GROUP TO PARTICIPANTS IN THE NEGOTIATION PROCESS
(on the political situation in Ukraine as of 7 December 2004)
In the light of the political events of recent days in Ukraine, the Kharkiv Human Rights Protection Group believes it necessary to turn to the participants in the negotiation process with the following letter. This document can be regarded as our statement or appeal in response to the situation which has arisen. We are convinced that the following must be said now:
1. We consider the attempts to unite into one «voting package» votes on amendments to the Law «On the Presidential Elections», the issue of the dismissal of the Central Election Commission (CEC), the Government (Cabinet of Ministers) of Ukraine and issues of constitutional reform to be morally, politically and legally inadmissible.
First of all, this merging seems to us profoundly immoral. When the opposition demands the dismissal of the Government and the CEC, and also the introduction of amendments to current electoral legislation, this is not in order to gain this or that political or legal benefit for the opposition, but in order to restore the fundamental and intrinsic right of the people and every citizen of Ukraine to vote fairly and with equal rights, and therefore, effectively, to exercise their sovereign will which, we would remind you, is not subordinate to, but above the participants in the negotiation process.
In this respect, we would once again stress that the electoral rights of citizens, the right to vote fairly and to be elected, are prior to all forms of power, their branches and divisions, and also all State bodies and political institutions – from parliament to the President, the Cabinet of Ministers and CEC inclusive. After all, the latter, in the final analysis, are no more than political managers, functionaries and there to serve the people.
It is precisely for this reason that electoral rights, their scope and the procedure for exercising them must not become a subject for opportunistic deals, haggling or other political speculation. Electoral procedure must not be artificially improved or worsened as suits the regime. In a democratic, law-based State they always have (should have) only one vector – increase in their own effectiveness, guarantees, and, as a result, – political effect.
Therefore, no participant in the Ukrainian political system should (is entitled to) promise any improvement (or in general, modification) of electoral legislation on security of voting or not voting for constitutional reform, or for any other kind of parliamentary voting at all.
The will of the Ukrainian people both in the material, and in a procedural sense, must not be subject to (be subordinate to, depend on) the will of any of the participants in the negotiation process. This will is a priori sovereign, higher, intrinsically above any participants in the negotiations and above the political elite in general of the country. We would once again remind you that a decision whether to make the second round of presidential elections «more» or «less» fair and transparent – cannot and should not depend on any corporate deals. After all, the values which are directly affected are infinitely higher than the interests of party leaders, parliamentary factions, presidential candidates, the Prime Minister or the CEC. Still more so are they higher than the personal interests of L. Kuchma, V. Yanukovich, P. Simonenko, O. Moroz, or V. Yushchenko.
2. Furthermore, the issue of constitutional reform, frankly speaking, is much too important and fundamental to be «pushed through» in the midst of the political crisis which has developed. We would remind you that the Constitution is the highest strategy regulator of the domestic life and foreign policy of Ukraine. In this capacity it cannot be held hostage to or be used for political tactical maneuvers. The Constitution is far higher than any political tactics, higher than any parliamentary or presidential maneuvering, and therefore must not be modified or altered in emergency conditions, so to speak, «along the way».
We would again insist that the proposed package of modifications to the Constitution in Draft Law №4180 is far from ideal. It runs counter to elementary political and judicial logic, often simply defying pure common sense.
It is well known that the Ukrainian Constitution of 1996 was written using models existing at the time in Europe and the world. As a document with conceptual borrowings, it surpassed in its political and legal qualities the internal creative possibility of Ukrainian constitution thinking of the time.
The situation is fundamentally different now. In contrast to the integrated, familiar text of the present Constitution, the draft political reform is the result of exclusively ‘homemade plans and designs, the product of the political culture of the day. However, although the Draft this time is really national, its political and legal qualities remain more than suspect. It is by no means an accident that this Draft was criticized by the Venetian Commission, which politely, but in entirely transparent form, made it clear that the construction of our constitutional bicycle had not been improved. Unfortunately, the sincere and open criticism of our kindly-disposed colleagues and friends was unable to positively influence our self-confident persistence. Indeed, it would appear that our naïve self-sufficiency in issues of constitutional law has only increased.
We have pointed out many time that almost all of the mixed bag of draft projections for constitutional amendments, which the present regime has tried at different times and with different degrees of intensity to push through, have been detrimental to the democratic process, have disrupted the imperfect, yet viable executive ladder of management, have introduced a disciplinary statute for State Deputies, have played up to the political primitivism of party bosses and leaders of factions, and have in general leveled out expressions of individualism at top levels and on the rungs of the ladder of State management.
In this sense, the last version of the Draft on constitutional amendments №4180 is yet one more attempt at incompetent constitutional adjustment. Not wishing to raise the level of their own political culture to the demands of the current Constitution, the regime in power is stubbornly attempting to lower the level of constitutional regulation to their muddled and short-sighted pseudo-democratic notions.
In this none of the leaders feel any concern that the Draft effectively shatters the integrity of the domestic and foreign policy of Ukraine, threatens the principle of collegial responsibility of the Cabinet of Ministers and ignores the principle of the division of power. The Draft introduces a basis for uncritical parliamentary collectivism and clearly increases the risk of confrontation between parliament and President....
However, the main problem in our opinion is that Draft №4180 in real terms narrows the social base of democracy in Ukraine. According to the draft for constitutional reform, political strategy and tactics of the country become the prerogative of Parliament which, in contrast to all the people, one can nonetheless corrupt. It is well-known that democracy of the people as a whole is important precisely because it is physically impossible to corrupt the entire nation. This classical, long-understood political thought has frequently found confirmation in very different spheres. Therefore the dependence of the truly influential post of President on the direct expression of the will of the people in Ukraines circumstances is absolutely justified, urgent and not subject to doubt.
This dependence is also a strategic counterbalance to possible foreign pressure on Ukraine. Moreover, Ukraine is still at the stage of political development where its financial and economic might are too merged with politics. This is why in Ukraines political system, a democratically elected President still continues to play a particular role.
As we have already mentioned, a President with strong powers is important for an adequate reaction by the country to Russian or other similar foreign challenges. Russia, and other countries of the CIS, are all presidential republics on whose foreign policy we directly depend, and not only in the area of energy supplies. Proof is scarcely required that Ukraine must have presidential mechanisms for swift reaction to challenges of this kind. In this kind, there is clearly more involved than merely the optimization of relations at the level of the executive branch of power.
We therefore consider that one could even consider constitutional reform in the direction of strengthening the presidential executive powers, making the Cabinet of Ministers of Ukraine subordinate to the President, while at the same time imposing direct political and legal responsibility for the actions and politics of the Government.
In any case, the reduction of the status of the President to purely representative international functions, as proposed by the reformers, is, in our opinion, poorly motivated and unjustified, and jeopardizes the ensuring of the interests of State independence and national sovereignty. If the reform goes ahead, the already high corporate element in Ukraines political system will rise sharply. The influence on parliament of powerful financial and economic groups with their self-seeking interests will become stronger and take on a systematic character.
Ukrainian moderate federalism is quite another matter which could, in terms of reform, be sensibly discussed («two Ukraines»). After all the idea of decentralization has been recognized in Ukraine since Dragomanovs day. As is well-known, M. Hrushevsky, S. Shelukhin and R, Lashchenko were all convinced federalists. In general, constitutional reform of such a kind could really be appropriate for the time. However, this would have to be something quite different, a truly anti-crisis reform.
3 We would also state firmly that the lobbyists for a strategy of constitutional (political) reform should not be parties whose leaders gained 5-6 percent or even less of the votes in the first round of presidential elections. It is certainly incomprehensible to us why the ideas of reform should have to be introduced by those who had expressed the most reservations about them and who precisely for that reason gained the support of a significant part of the electorate.
It seems entirely illogical that the ideas of political outsiders (we would ask them not to take this personally) like P. Simonenko or O. Moroz should have to be introduced, on the strength of his political authority, by V. Yushchenko. One could say and write a lot on this subject, however in the wish and attempt to implement the reform at the expense of «Our Ukraine», we see a situation where «the beaten are leading the unbeaten».
Yet again we would draw the attention of political leaders to the fact that introducing constitutional reform with a radical alteration in the powers of the President between the first and second rounds of a presidential election is absurd and unconstitutional. The situation should clearly not arise that citizens of Ukraine in the first round of elections voted for a President with one status, while in the second – for a President with a manifestly different status.
It is clear to us that the hundreds of thousands of people on Independence Square in Kyiv are standing in December snow not to elect a person who «reigns, but does not rule». People are standing on the square to defend their choice of President, a President, dear to them, representing truth and good, Consciously and subconsciously they are counting specifically on him, on the power and authority of his constitutional post. The people on the square are fighting for the right to a just hetman, and not a cunning member of the court entourage. It would be ill-advised to forget this.
The power of spirit, the lively reason, openness and moral purity of the people on the square are incomparably higher than the obscurantist spirit of an intrigue-motivated constitutional reform. Students, workers and businesspeople are certainly standing for reform, but not for the reform of formal institutions, but for change to a pathologically corrupt, dishonest regime. They are all protesting not against the incomplete legal coatings, but against the human mass, which these coatings, in the given circumstances, are covering. Thus, they are protesting against lazy and degenerate people, and not against constitutional appendices and norms. Therefore, the current attempt at political reform is, in our view, an attempt by the old regime to divert this outburst of human energy into the wrong channels. The dead grasping for the living, envious of their unfettered freedom, are trying with their last strength to drag us into an old, moldy and dark political grave.
We are convinced that the people on Kyivs Independence Square are protesting against their denigration, the culprits of which are not institutions, but entirely real individuals. Yet devious, bad or simply not very intelligent politicians want at any cost to prove to us that the enemies of these people are not the thievish little embezzlers of State funds with the pretensions of provincial snobs, but something abstract, formal and judicial.
In this sense, the «reformers» deepen the present crisis, rather than smoothing the situation. After all the demands of «Maidan» are really quite modest: they seek only fair, not rigged elections. On the other hand, the reformers demands are ambitious and entirely immoral. They are trying to steer the peoples force into «reform», which rather than strengthen, actually oppresses and crushes our best hopes.
4. Vaclav Havel, commenting on the events of the Ukrainian Orange Movement, was right: the issue is not the election of Viktor Yushchenko, the person, but rather the funeral of Ukrainian postcommunism altogether. Therefore the passing-bell which has been ringing for half a month already on the capitals square is ringing for that demise. On that square people freed themselves of their fear, and with it, their sense of dependence and slavery. Their leader is the antithesis of immorality and, at the same time, of an authoritarian political style. He is thus the antithesis not of the form, but of the old political content. V. Yushchenko is truly a Ukrainian political «outsider», a bohemian in the best sense of the word. His style of communicating with the people is natural and relaxed. His thoughts are at once refined, and clear. He is definitely a peoples candidate, the personification of a Ukrainian ideal of talent.
In fact, this is clear to all participants in the negotiation process. However rational understanding with the regimes people combine with many not at all elegant, «secondary» feelings. Once Thomas Mann described the French King, Henry IV: «He was simple of soul, but not of mind». V. Yushchenko clearly has a natural charisma, both of soul and of mind.
The real scale of this figure, his depth and significance are growing literally before our eyes, unfolding day by day. However just as quickly, we see peoples envy towards him increase. We have at present an excellent phenomenon of a persons naturally gaining in stature with all that such a rise is usually associated with.
A free nation is usually not mistaken and loves those who truly deserve it. Ukrainians have truly taken to V. Yushchenko. On the background of his incredible and genuine popularity, those figures who very recently, literally yesterday were in the foreground, seem much less significant. Yet as has turned out that it is precisely these people who are participants in the negotiation process. It is therefore to these people that our open letter is, in the first instance addressed.
Ukrainians would obviously not stand for half a month in the snow for any of them. Yet do they have the moral right to be offended by this? And is it really appropriate in the given situation to think about how, as quickly and skillfully as possible, to clip the wings of a leader who has succeeded in showing people the advantage of dignity and freedom?
Do they really want constitutional reform so strongly? Do they really want fairness, guarantees of human rights, democracy?
We cannot exclude the possibility that our people in power really do want to gaze at these wonders. However, we will probably never know this. Therefore, having well-justified doubts, and sadness in our hearts for all that they committed, we turn to them with an appeal not to take such fervent care of our interests.
At the same time, we would like to say to these people: put aside your political jealousy, clear your minds of your mean-spirited and thought-impoverished constitutional –separatist intrigues, move aside, let the Ukrainian people finally set out on a free road.7 December 2004
 A Hetman was a national leader in Ukraine in the past (translators note)
 «Maidan means ‘square, but since the days of the Orange Revolution has come to symbolize the movement (translators note)