“It will all come true tomorrow
“It will all come true tomorrow. Believe me. Tomorrow.
It will all come true tomorrow. Hold on”.
Its these lines that I feel like quoting when I read all the lamentations in articles and on Internet forums about disillusionment, betrayal, tragedy, even despair in life itself, and then next to these the feverish plans for a second Maidan, for hunger strikes, blocking roads, etc. Friends and colleagues, human rights defenders and those attacking them, activists in general! Lets first calm down a little and try to thing soberly about what needs to be done at present. But lets first acknowledge that nothing so terrible has happened. Nobody has died a violent death, nobody has been imprisoned on political grounds, nobody is encroaching so very directly on our liberty. We are free to create our own fate as we believe necessary. Sure, many of us believe that the Ukrainian political elite has yet again betrayed its people, and theyre right. However it didnt begin with us, nor will it end with us, so lets not make a tragedy out of it. Particularly since none of it is so unambiguous. And perhaps, after some time we will view recent events rather differently. In the end everything will work out more or less badly, as the British Lord Bolingbrook liked to say. So lets speak about what to do so that its “less” rather than “more”. Incidentally, besides undoubted moral losses, disillusionment, etc, we do have certain positive aspects.
Loss of illusions is always a good thing, however bitter reality may prove to be.
In my opinion the main result of the political events of the beginning of August is the renewed functioning of the Constitutional Court. This is much more important than the election of the government. Governments in Ukraine exist for a year, 18 months, no longer, while the judges of the Constitutional Court are appointed for nine years. All decisions which were taken in the absence of the Constitutional Court (CC) are basically not legitimate, and could now in theory be cancelled by the Court.
It was precisely the panic-stricken fear that the CC would abolish the so-called “political reform” (the constitutional amendments from December 2004 - translator) that led to the blocking of the Courts functioning which is nothing but a usurping of power by Parliament (the Verkhovna Rada). This fear can also explain the naïve idea that supposedly, in accordance with the Transitional Provisions to the Constitution, Parliament has the right to interpret the Constitution in the absence of the CC. It was the same fear that prompted Parliament to pass Law №1253, which prohibits (!) the Constitutional Court from reversing the amendments to the Constitution passed on 8 December 2004. As the saying goes, does the cat realize whose meat its polished off! In my view the passing of just such absurd laws is telling evidence of the constitution abuse of the law which has taken on epidemic proportions in this state body. And the President, who should have used his power of veto, without a murmur signed a law which patently violates the Constitution.
I am certain that the CC will revoke this shameful parliamentary concoction. However the Constitution Court cannot on its own initiative review this issue: it needs to receive the appropriate constitutional submission. The submission can be presented by the President (just as with the law on immunity of deputies of local councils which the President signed, but later turned to the CC with a submission asking about its constitutionality), or by a group of 45 or more State Deputies. The first task of publicly aware citizens, of society as a whole is, in my opinion, to force those entitled to make such a submission to do so.
The next step would be to make a submission asking for an opinion as to the constitutionality of the “political reform”, that conspiracy of the rich against the poor. The Kharkiv Human Rights Group has on many occasions publicly stated that the amendments introduced to the Constitution on 8 December 2004 are a major threat to human rights. It is therefore most painful to see how all our most gloomy predictions are coming true to the last letter. “Carthagen must be destroyed!” The simplest step towards revoking the “political reform” would be a constitutional submission for an interpretation of Articles 155 and 157 of the Constitution with respect to whether the procedure for introducing amendments to the Constitution allows for a mutually dependent (“package”) vote, introducing constitutional amendments together with amendments to an ordinary law I believe that the CC will once and for all forbid such “package” votes iintroducing amendments to the Constitution.
The revoking of the amendments to the Constitution is a fundamental issue: the actions of the Ukrainian political sphere must be brought back to law-based tracks. The subjectivism of Ukrainian politicians, the impression they have that they can do what they like in order to achieve their ends is extremely dangerous for the country, as we are observing. It is this that the political forces of all shades, as well as all branches of power, especially legislative and executive are guilty of. Nothing good can come out of not observing the principles of the rule of law. The efforts of society, therefore, must be directed at restoring respect for the law, for the observance of all necessary procedures. The first step in my opinion will be to demand that politicians revoke the “political reform” by means of making a constitutional submission.
I believe that we must support key reforms which have already begun or are being prepared – in the judiciary, with legal aid for the population, criminal justice, etc. One can expect that bodies of executive power and administration will again, as in Kuchmas time, begin putting pressure on the courts to safeguard their own clan interests and privileges for business close to them. Court reform is aimed at strengthening the independence of the courts. We must support this in all ways available to us.
There are many who think that with the coming to power of the new government basic freedoms, for example, freedom of speech and of business enterprise, will be curtailed, and that state coercion and pressure will be heightened. In my view such perceived threats are exaggerated. The new administration is significantly restricted in its actions by many factors. Nonetheless a certain degree of regression may take place, particularly in eastern and southern parts of the country. There one can expect the return of all patterns of the domination of the authorities over business. Freedom of private enterprise which is already much too restricted now faces a serious risk, with small and middle-size businesses likely to suffer. It would be desirable, therefore, for civic organizations to join forces with trade unions of businesspeople and to not allow any case involving illegal actions by agents of the state to go unanswered, to providing information about such incidents, ways of countering them, civil suits. The Code of Administrative Justice provides an excellent tool for educating the bodies of power and administration, and we need to learn to use it. The same applies to potential incursions on freedom of speech.
In fact one could say the same about any unlawful activities of the state in all spheres – each must be appropriately dealt with. In order to respond, and even better, to prevent such activities, wide-reaching civic control is needed over the activities of all bodies of power and administration, both at the national, and at the regional levels. In order for this control to be real, and not a mere fiction, we must ensure real openness and transparency of the authorities, and for this people need to be informed. It is therefore exceedingly important to get amendments to the Law “On information” passed which must ensure the highest possible level of information parity between state and society. Under conditions of access to information it is also possible to exert influence on the formation and implementation of the budget, to know about the decisions of bodies of power and administration on publicly important issues, to monitor the implementation of such decisions, to evaluate their results, etc. We would also mention Code of Administrative Justice provides the opportunity for appealing against the unlawfulness of normative legal acts of bodies of power and administration at all levels. The Code effectively introduces the concept of the potential victim, it provides the chance for some individuals to file suits demanding the revoking of this or that normative legal act which may infringe their rights and liberties. There is no requirement that the person who files such a suit on having such an act revoked be the direct victim of the force of the given act. This concept may, on condition that the public become active in this, significantly change the relations of society and state.
How can we carry all this out? I would suggest using the experience of human rights organizations in creating specialized networks of civic institutions and individuals regularly overseeing the affirmation and safeguarding of a special right or group of interrelated rights and carrying out a whole range of tasks on addressing the issues which arise with exercising this right or group of rights. Examples here would be defending the victims of violations, awareness raising, monitoring amendments to the normative legal basis and practice, both administrative and of the courts, drawing up and lobbying such amendments in the interests of society. Such networks should include regional institutions which can defend victims of violations and gather information at a regional level, and oversee decisions taken by local bodies of power and administration, think tanks which can analyze regional information, study foreign experience, carry out the relevant research and which are oriented towards participation in decision-making at a national level. They also need individual specialists in the relevant field – analysts, experts, lawyers, etc, who can be called upon to undertake specific tasks involving analysis, development of methods, representation in court, etc. This approach in my opinion can be applied in the case of any public issue, be it social orphans, the reform of the municipal housing system or the quality of secondary education. In order to create such networks one needs effective means of communication. I think that the best way of self-organization would be to use such websites as Maidan (www.maidan.org.ua) Civic Realm (www.civicua.org), and others.
An important issue is that of communication with the authorities. In my view it would be desirable to ensure a regular active roundtable (say once a month) between representatives of the authorities and the public, and to broadcast this on nationwide television channels and radio stations, like the roundtable of 27 July. Each session would address a specific issue and specialists in that area would take part – the highest-level state specialists and public experts. Whether our politicians and government officials will agree to such a step only time will tell.
Thus we have our work cut out? I would end with the same poem:
“And still, the victory is not so very important,
After all we havent abandoned the struggle.”
 The Law on constitutional amendments was passed on 8 December 2004 together with laws making amendments to electoral legislation aimed at ensuring that the re-run of the second round of voting was not also marred by flagrant vote-rigging. As has been repeatedly stressed, these laws and constitutional amendments were part of a package deal agreed between different factions in the Verkhovna Rada (translators note)