Open letter from the Kharkiv Human Rights Group regarding the threat posed by the “political reform”
The Kharkiv Human Rights Protection Group (KHPG) has on several occasions commented on the events around the “political (constitutional) reform”, providing analysis of both its essence and the manner in which it has been introduced. KHPGs constitutional experts have, in particular, demonstrated that the Draft Law which was voted on as part of the “package” (including amendments to electoral legislation) of 8 December 2004 needs to pass through the necessary review procedure in the Constitutional Court of Ukraine. We were expecting a constitutional application to the Constitutional Court by the Ukrainian President or from a group of 45 State Deputies, and a final vote which should have thrown out this both politically and legally seriously flawed creation. However this has not happened. The former opponents of the “reform” have turned into its supporters, hoping for future victory in the parliamentary elections and that their leader will be given the post of Prime Minister with presidential powers. The President whom we were relying upon as Guarantor of the Constitution, has signed a memorandum with Viktor Yanukovych, the first point of which concerns the introduction of this political reform.
Not wishing to raise the level of their political culture to the demands at least of the current Constitution, the present political elite are stubbornly endeavouring to lower the level of constitutional regulation to their muddled and short-sighted pseudo-democratic conceptions which yet again demonstrate concern for short-term political interests as opposed to respect for the rule of law. It would appear that none of them are concerned that this “reform” would create an illogical competition between the highest State posts of President and Prime Minister within one – executive – branch of power, effectively tearing apart the unity of Ukrainian foreign and domestic policy, encroaching upon the principle of collective responsibility of the Cabinet of Ministers and making a mockery of the principle of division of branches of power. They do not appear to care that the “reform” introduces the principles of the worst kind of political collectivism, transforming parliamentary Deputies into voting machines, entirely dependent on the will of party bosses and leaders of factions, manifestly increasing the risks of parliamentary-presidential confrontation and significantly strengthening the direct organizational dependence of parliament (the Verkhovna Rada) on the will of the President. Nor do they care that the reform will be an obstacle to creating a strong and independent judiciary, returning the old Soviet-style general surveillance into the hands of the Prosecutors offices and thereby once again running counter to the commitments Ukraine gave in joining the Council of Europe. Further arguments in support of this position can be found in the conclusions of KHPGs constitutional experts:
KHPG believes that it has a duty to once again warn that the implementation of this so-called political reform would be very likely to have disastrous implications for the future of our country. The “reform” poses a real threat to State independence and sovereignty of the people. Its introduction will bring about a sharp increase in the already significant level of corporatism in the Ukrainian political system. The influence of self-seeking interests of powerful financial-industrial groups on parliament will increase and take on a permanent, systemic nature.
The political reform, changing the constitutional powers of the President “in midstream” is undoubtedly a violation of the principle of his legitimization via the elections (this is stressed, in particular, in the open letter of the “Maidan” Alliance “In defence of the sovereignty of the people and the Constitution”, which was signed by around a thousand people and sent to the President on 16 September (cf. http://khpg.org/index.php?id=1127812713). We would, yet again, stress that a “package” vote on introducing amendments to the Constitution is absolutely unacceptable since such a means of expression of will is a classic example of voting (expressing ones will) “on certain conditions”. It would seem that, aside from the Ukrainian courts, this is understood by any constitutional or supreme court with a basic level of professionalism in the world. Voting for a document of strategic significance, the State Deputies should have been guided by purely constitutional and long-term principles, and not by tactical considerations arising exclusively from the specific circumstances of December 2004. “Package votes” are not allowed by either current legislation, or even by Section XIII of the Constitution of Ukraine. They also fail to comply with Article 19 of the said Constitution which prohibits bodies of State power, and therefore the Ukrainian parliament, from undertaking any free modifications of key judicial procedures, separately set down and safeguarded by special guarantees at the highest level!
We are firmly convinced that the Ukrainian political elite must after all realize, and now, what kind of hybrid distortion they are planning to create, and to stop this process. Is it really impossible to find 45 Deputies in the Verkhovna Rada (Parliament) who feel their responsibility before the people? Can the President really not understand that agreeing to this reform will negate his own victory at the elections of last year and will transform him into the destroyer of constitutionalism and democracy in Ukraine? Is the Constitutional Court of Ukraine really unable to understand legal axioms? Can the supporters of parliamentary republicanism, who are in favour of the “reform” purely as a result of their abstract support for the principles and benefits of the parliamentary system, not see that the implementation of this dubious and risky idea will distance them still further from parliamentary democracy, as well as generally distancing the people from having any influence on those in power?
In our opinion, Ukrainian politicians and lawyers still have the chance to avoid being totally discredited and to stop this shameful and hypocritical political action. For this they need only to somewhat subdue their ambitions as regards power and before it is too late to recall good common sense.
We are sending this appeal in the form of an open letter and call on all concerned organizations and individuals to add their voice.
Co-Chairperson of the Kharkiv Human Rights Protection Group
Chairperson of the Board of the Ukrainian Helsinki Human Rights Union
Member of the Board of the International Society «Memorial»
Co-Chairperson of the Kharkiv Human Rights Protection Group
Constitutional Expert for KHPG
Legal Adviser to the “Maidan” site