08.11.2005 | Oleksandr Severyn, Kyiv



The right and the duty to express the following views are given to me by one simple circumstance – I am a citizen of Ukraine.

In Ukraine there are plans afoot for the use of a weapon of mass destruction – the destruction of the very foundation of the national legal system, as well as of the seeds of civilized legal consciousness, which had only just, nourished by the beneficial rain of the people’s action for freedom and justice, forced their way up, out from the remains of the rancid Soviet bog.

It is neither international terrorists, nor “shakhidy” (suicide bombers) who are developing this weapon. Our home-grown saboteurs can hardly (with a rare exception or two) boast of any ideological foundation for their ignoble scheme and are most certainly not planning for a moment, like a shakhid, to die themselves. Having used their bomb, they have every intention to go on flourishing and, in addition, leading the country, having foisted on the nation their feeble “concepts” and their perception of expediency, which has nothing in common either with the law, or with the interests of Ukraine.

If Ben Laden had been a more adequate figure, not so hell-bent on his specific understanding of the value of human blood and just a little more initiated into the specific functioning of the American democratic system,  it is possible that Al Kaida  would have inflicted his strikes not on the entirely innocent twin towers, but on the American courts, or more likely on their archives where court cases in their primary sources – the most important source of the Anglo-Saxon precedent-based legal system – which constitute the oil and fuel for the efficient operation of the State mechanism of the United States, are held. Our home-grown “bombers” have chosen for themselves a target which is equal in value given Ukraine’s adherence to a different legal system, that target being the Constitution.  The bomb is referred to as “the political reform”, or in its coded form, the Law of Ukraine “On amendments to the Constitution of Ukraine», №2222-ІV from 08.12.04.

I deliberately refrain from calling this law a “constitutional reform” since there is as little in it which is constitutional, as there is anything of a reforming nature. One is rather looking at deformation. Constitutional deformation and constitutional sabotage. The word “political” is by far the best suited word both from the legal point of view and in terms of the ideological potential of the document, arising from an under-the-carpet fusion of primitive political expediency (in the understanding of certain individuals, and with the qualification that any political expediency is primitive, in contrast to State or public expediency), and political opportunities provided by the people to ultimately irresponsible people who in the vast majority of cases come nowhere near deserving this honour.

The "political reform” has neither morality, nor any idea of the law.

Its immorality is, in my opinion, vividly illustrated by three episodes:

Firstly, Mr O.O. Moroz[1], apparently honest and supposedly incorruptible, in a situation of life or death as far as Ukraine’s prospects for the future were concerned, persistently, with a dogged determination worthy of the best professional at Besarabka Market, bargains with Yushchenko, making his (Moroz’s) joining of the coalition contingent upon a deal over the “reform”.

Secondly, “the foremen of the reform” pushed it through during a period of revolutionary events, in a shameful “package”, together with an electoral law.  Nor are they in the slightest bothered by such “trivial” details as that in no shape or form did one hear slogans of “The reform, the reform!” from the Orange Maidan[2]  (nor for that matter from the squares of the canonical territory of the camp of their opponents).  Or that (do note!), they are making contingent, “on condition” the creation for the people of the law for exercising the sacred right of choice.

Thirdly, those worthy individuals, who had earlier slammed the “reform” with their last (or at least, almost last) breath, and had written, gathered, and amassed in safes their petitions to the Constitutional Court, softly-softly, through the vegetable gardens, past the orchard, tip-toeing directly through the bog, have now found their way into the ranks of its (the “reform’s”) supporters. Oh, that sweet word “power”!  Well what can you say? It is, after all, “human, all too human”. Indeed. Only that does not excuse the presence of a Deputy’s mandate and the authority to carry out legislative functions.

The "political reform” is based on no ideas, since the affirmed amendments to the Constitution are extremely controversial, not capable of bringing anything except an extremely dangerous disarray in the functioning of the State mechanism, denigrating the “people’s chosen representatives” to the level of “hand-raisers” programmed by the leaders of factions (and through them, by the above-mentioned moneyed players, who may even prove not to be only home-grown) and finally turning the Verkhovna Rada into some kind of limited company, or perhaps into a clan and party-based club according to group economic interests.

A lot has been said about the internal threats posed by Law №2222-IV, so I will only concentrate in the following on certain key points.

Firstly. The imperative mandate and possibility for depriving a Deputy of his or her powers in cases where the person is not a part of the relevant faction, or is expelled from it, leaves no scope for a considered and independent decision-making process, is hardly in keeping with the will of the voters and gives absolute value to the administrative resource of the leaders of factions (consequently raising their personal “price” in the eyes of potential “sponsors”).

Secondly, confrontation caused by different views of the initiators of the nomination, of the economic bloc of the government and of those who are appointed on the initiative of the President (the Minister of Defence, the Minister of Internal Affairs, the Head of the Security Services) is probable.

Thirdly, there are mines planted in the norm which introduces additional grounds allowing the President to suspend the powers of the Verkhovna Rada, specifically:

-  The inability of the Verkhovna Rada to form “a coalition of Deputies’ factions” (read – majority. Welcome back, majority, idée fixe of Leonid Danylovych (i.e. Kuchma), you’re with us again).

-  If within 60 days of the resignation or dismissal of the Cabinet, a new government with named members has not been formed. The lack of a majority may be a reflection of the actual will of the people. So, the people did not want, when electing its parliament, to make it capable of creating this majority – then so be it, this is their sovereign will and dissolution of parliament by the President in such a situation will run into conflict with the vector of the people’s expression of will.

The provisions about not approving the Cabinet of Ministers are absolutely staggering in their peremptory simplicity. What will prevent someone putting forward obviously unacceptable candidates (suggesting me, for example) specifically in order to have the legislative body disbanded? With direct intent or just with a conscious assumption that such a variant is conceivable?  An analogous and equally depressing conclusion is clearly required for the norm about the right of the President to suspend acts of the Cabinet of Ministers, while at the same time making a petition to the Constitutional Court. In fact, in accordance with the present, as yet not distorted by Moroz and his mates, Constitution, the President has the right to revoke acts of the government (Point 16 of Article 106). However, I’m sorry but a situation when the Head of the State takes the responsibility on him or herself to revoke a decision of the Cabinet of Minister, and a situation when the Guarantor of the Constitution washes his or her hands, placing the responsibility onto the Constitutional Court (which could, by the way, according to national tradition, continue its consideration until the Second Coming), are most clearly entirely different.

The "political reform” lacks something even more fundamental – the Law.

At a formal, legal level it is illegitimate for at very least the following reasons:

а) It was adopted “in a package”, altogether, as a kind of garnish to the electoral law. This when there is not even a mention of "package voting" to be found in the Constitution, in the Regulations of the Verkhovna Rada or anywhere else, and when, in accordance with Article 19 of the Constitution of Ukraine ”Bodies of state power … and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”.  As any student of a law faculty will tell you, the Verkhovna Rada of Ukraine is precisely a body of legislative power (Article 75 of the Constitution), and Mr Lytvyn, who is personally involved in pushing forward the “reform”, is its official.

б) It was adopted without the legally requisite second review by the Constitutional Court of Ukraine, since the Draft Law No. 4180, already considered by the Constitutional Court, had changed into a law, undergoing “along the way” radical mutations.

At the level of adherence to the principle of the Rule of Law and to the sovereignty of the people – this is a flagrant infringement of both.

In accordance with Article 103 of the Constitution, the President of Ukraine is elected by citizens for a period of 5 years, with the powers of the President being set out in Article 106 of the Main Law (the Constitution). It should be noted that in Point 2 of Article 1 of the Law of Ukraine “On the Presidential Elections”, it is also stated that the President is elected for the period set down in the Constitution. The only possible conclusion from this is unambiguous from both a legal and a political point of view: by electing a President of Ukraine, the people give this person for a period of five years the range of powers set down in the Constitution current and in force at the moment when the will of the people was expressed.  This expression of their will began with the first round of the elections, although in general, the beginning of the “period of suspension” of any changes in the powers of the President should be taken from the beginning of the election campaign, since it is then that the process of choosing begins for citizens).  Any other understanding, even if one sets aside formal jurisprudence, has quite simply nothing in common with democratic principles.

Accordingly, the State Deputies who voted for the “political reform” had absolutely no right to interfere in such a manner with the choice by the people, in accordance with constitutional norms, of their Head of State.  Such interference runs directly counter to the principle of the sovereignty of the people. Furthermore, Law No. №2222-IV, by effectively suspending before the end of the term a part of the powers of the President is in contravention of Article 108 of the Constitution which, in setting out only the possibility of termination prior to the end of the term of all Presidential powers (as the full range), envisages nothing remotely similar. It is only possible to discuss a change in the powers of the President with regard to a new term of office of the next Head of State. This is likewise true, in fact, with regard to a change in the powers of the legislative body.

Here I would like to turn to opponents from the former “white and blue” camp with a call not to interpret my categorical rejection of the “reform” as being a banal attempt to hold tight to the status quo for “the Orange” side.  On the contrary, just imagine, my fellow citizens, that at the next Presidential elections, your candidate wins honestly. You, quite naturally, will be delighted. But what if in the morning you discover that in the middle of the night there was a sitting of parliament which adopted amendments to the Constitution (which had half an hour earlier been reviewed by the Constitutional Court), according to which the powers of your chosen candidate became pure fiction and from now on his or her sole right (and indeed duty) was to open the car door for “our” Speaker of the Verkhovna Rada. You like the idea? I personally don’t. In fact, I emphatically don’t. I’m ready to go out on Maidan, on to the barricades. I mean it.

For the supporters of the “political reform”, I have some bad news – the unconstitutional nature of your mutant favourite has already been confirmed by the Constitutional Court.  Are you surprised? You shouldn’t be.  Please take a look at the rather old by now decision of the Constitutional Court of Ukraine No. 3-rp/2000 from 27.03.2000:  "the current Constitution does not envisage the possibility of holding an All-Ukrainian referendum to vote on a declaration of no confidence in the Verkhovna Rada, or in any other constitutional State executive body as potential grounds for early suspension of their powers. Therefore any motion put forward at an All-Ukrainian referendum on a vote of no confidence in the Verkhovna Rada, given the lack of such a possibility being allowed for in the Main Law of Ukraine, would be a violation of the constitutional principle of the exercise by State executive bodies of their powers within the framework provided for by the Constitution of Ukraine, as well as of the principles of a law-governed state which Ukraine has proclaimed”. 

For anyone who does not see the connection, I will explain: the powers of parliament (the Verkhovna Rada) cannot be suspended early (in the opinion of the Constitutional Court – not even by referendum!), since there is no such possibility envisaged in the Constitution. Is the analogy clear?  The powers of the President may not be partially suspended prior to the end of the term of office, because there is no such possibility allowed for in the Constitution.  Therefore, if the Constitutional Court does want to be a court protecting the interests of the Constitution, and not some kind of weather-cock, then white cannot be declared black or vice versa. Knockout.

I am not surprised at the expected procrastination by State deps worried about the “political reform” over the process of forming a full quota of members of the Constitutional Court[3].

However, let them then not be surprised by certain things. The first of these being that the possibility of lodging a petition with the Constitutional Court remains at any time, and that includes after the apparent formal coming into force of the amendments to the Constitution. And about the other – in time, so that they don’t relax too soon.

And the other side of the coin “For the taking of the Constitution”, I would assert that the adoption by State Deputies of the “political reform” is nothing less than a usurping of State power.  Who gave THIS session of the Verkhovna Rada, THESE State Deputies, some of whom, incidentally, show in their behaviour more in common with the permanent patients of at least neuropathologists, such extended powers? The people?  No way! The people gave them those powers with which they, unfortunately, elected them.  To repeat: the Constitution does not allow for the possibility of extending the powers of the legislative body at the expense of the powers of the President, with regard to whom the people already demonstrated their elective decision.  For the next make-up of Parliament and for the next President, there is no problem. For themselves not, since otherwise the principle of representative power – the delegation of power - is violated and we de facto acknowledge the right of any State body to “self-regulate”.  What that could mean in practice is quite clear.

For reference, I would cite a recent decision of the Constitutional Court of Ukraine, No. 6-rp/2005 from 05.10.2005: “The provision of Part four of Article 5 of the Constitution “No one shall usurp State power” should be understood as prohibiting the seizure of State power through violent means, or in any unconstitutional or illegal manner by State executive bodies or bodies of local self-government, their officials, citizens or their associations”.

I would stress – in any “unconstitutional or illegal manner”.  And if anyone deems the arguments presented here to be academic, then I will return them to practical arguments. One would mention the “package”, or rather the lack of such in either the Constitution or legislation. I would ask you to note another point in the same decision of the Constitutional Court: “The guarantee that any usurping of State power will not be permitted is, in particular, given in the principles, enshrined in the Constitution of Ukraine, of the division of power into legislative, executive and judicial (Part one of Article 6) and the provisions in accordance with which State executive bodies or bodies of local self-government and their officials are obliged to act are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine. (Part two of Article 19)”.

Thus, and this was clear even without the decision of the Constitutional Court, any moves of a State body which deviate from the Constitution and the law are a revolt, a usurping of power, since such power is not vested in them by the people who are the bearers of sovereignty.  And there is no other source of power (for all that this could possibly be the discovery of a lifetime for the majority of State Deps and those behind them).

Another important point should be mentioned. In attempting to hide their “political reform”-cloaked shame behind, if not a fig leave, then some kind of ersatz argument, its apologists claim that if the package voting was illegal, then this means that the electoral law was illegal, and that therefore Presidential Yushchenko’s election is not legitimate.  Idiocy and deception!

In the first place, the Constitution, using the words of the Constitutional Court, does not envisage the possibility of suspending the powers of the President in a situation where a law in accordance with which he or she was elected is declared unconstitutional or revoked.  There isn’t. Not at all. End of the discussion.

Secondly, and I apologise for the language, but even the Deputies’ slight of hand with voting cards, when the fulfilment of the imperative obligation of the State with regard to providing the people with the opportunity to exercise their sacred right of choice was made contingent on the passing of the “political reform”, was, to put it mildly, a phenomenon so far from the law, that the people have all grounds for not allowing these pitiful voting machines near the legislative process for cannon fire.  And already the attempt to deny the people’s choice will give citizens all justification in “getting up and leaving”, reminding the authors of such an idea of their place, and the State that it is, after all, “answerable” (Article 3 of the Constitution).

There is more. I am a citizen. A voter. A tax payer. And don’t talk to me about “political agreements”, “deals”, and “compromises between political forces”.  I want to know nothing of all that. I did not sign any agreements and did not make any deals. I simply have rights which I will not give up without a fight. My barricades are the Constitution. Each time anybody attempts to take these rights away, they will have to take the barricade by storm. And we’ll see who wins, since there are a lot of us.

Therefore I am making an appeal.

I am appealing to the State Deputies who voted for the “political reform”, who did not lodge the appropriate petition with the Constitutional Court: if tomorrow the “reform” comes into force, then the day after tomorrow, do not be surprised if the tax department “rips into shreds” your business without any legal justification. Do not be surprised if you yourselves are seized by police officers right in parliament. And don’t be surprised, finally, if you get beaten up on the street. Because it was you who beat up the Law and lawfulness in Ukraine.

I turn to normal, that is, uncorrupted by a Deputy’s mandate, readers: just imagine, if you found that the alphabet book that you had bought for your child proved to have been written in the most foul language. In exactly this way, instead of our Constitution, the very foundation of a healthy law-based system, we are getting some pseudo-legal trash foisted upon us, which has about as much relation to the Law as the filthy abuse of a drunken down-and-out has to teaching our children their native language.  Remember the names of those politicians who speak out in favour of the “political reform”, remember the names of the parties and factions which are supporting this dishonourable matter – and (my personal advice would be) don’t vote for them again, not even, as Stephen King put it in his “Dead zone”, for a team to catch rabid dogs. For even that work requires a sense of responsibility and observance of rules, which they have proved totally incapable of showing.

I turn to my lawyer colleagues. Let us not be money-orientated hacks, ladies and gentlemen! Do you really feel no moral discomfort, while busying yourselves apparently with law in a country where an attempt is being made to destroy the first seeds of the Law?  Do you not  have any sense that you’re being conned when you are told about legislation, the law-making process, the application of the law by those who have the same relation to the Law as an executioner has to his victim?  And, incidentally, have you not got tired of earning money not by pure intellectual labours, refined, sharp-witted thoughts and words, but rather by expressing yourself diplomatically and acting as a go-between in the redistribution?  No feeling of shame?  Not before your children, or when you face yourself in the mirror?  This will go on for ever if you allow them to replace as the foundation of our legal system a powerful and high-quality constitutional basis with a product of banal “carving up” which is impoverished both in form and in substance.  What kind of legal consciousness, what kind of law and order, even as a middle prospect, will we be looking at in Ukraine?  So, maybe we join the barricades?

And I turn also to the court – in accordance with Article 55 of the Constitution of Ukraine. Something tells me that I will not be alone. And even if we do not succeed, we will not be ashamed, and we will make the “political reformers”, as well as the State itself, aware that they need to take the self-defence of the people into account.

Long live Constitutional reform – democratic and legal in its essence, impeccable in its insistence on public debate and procedural norms.

And may the “political reform” rot!

Printed from Maidan.

[1]  Oleksandr Moroz, leader of the Socialist Party, won more than 5 % of the votes in the first round of Presidential elections in 2004, then called on his supporters to vote for Yushchenko. (translator’s note)

[2]  Maidan means “square”, and refers to  Independence Square in Kyiv and all the others throughout Ukraine where people stood for days, standing up for their choice of President (translator’s note)

[3]  The judges of the Constitutional Court are appointed for a period of nine years which cannot be extended. Since the Constitution was adopted 9 years ago, there are presently a lot of vacancies, one third of which are to be voted into office by the Verkhovna Rada. (translator’s note).

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