Constitutional Reform in a legal tundra

“Everything must take place solely within a “legal environment”, our President constantly reiterates. We heard this phrase on Maidan, we heard it when the Verkhovna Rada was not dissolved and Viktor Yanukovych was appointed Prime Minister. And we keep hearing the phrase still now. One immediately feels like asking what this “legal environment” is. Presumably it’s when for a year and a half the Constitutional Court is not elected, when changes to the Constitution are voted in as part of a package vote with violations of constitutional norms and without the final approval of the Constitutional Court, while neither the Guarantor of the Constitution, nor the Human Rights Ombudsperson, nor State Deputies make the appropriate submission, when endless Ukrainian laws are passed which run counter to the norms of the Constitution.  Is this then what is meant by a “legal environment”?  Sorry, but that is a legal tundra!  Incidentally, with regard to a “legal environment”, was it not within a “legal environment” during the Holocaust that six million Jews and six hundred thousand Roma Gypsies were murdered?  From the point of view of positive law all took place entirely within a legal environment. First an honest electoral victory by the Nazis, then “lawful” removal from power of all other political forces and the totalitarianization of society, in the process of which there was yet again “lawful” passing of inhuman laws by means of which later millions of people were exterminated. It should be remembered that the Nazis were convicted by the Nuremburg Tribunal for crimes against humanity on the basis of natural law, i.e. in a totally different “legal environment” which proves the primacy of natural law over positive.

However, let us return to our tundra! In contrast to the “law-abiding German Nazis, the Russian Eurasian mentality bred an entirely different attitude to the “legal environment”. You see that there are quite different expanses, an all too broad “environment” of activity. Another sense of space – another sense of time. As the humanist Settembrini in Thomas Mann’s “The Magic Mountain” says: “Is not the recklessness of these people when it comes to time linked with the unlimited expanse which their country occupies?  Where there’s a lot of space, there’s also a lot of time – it’s not for nothing that it’s said about them that this is a people who have time and can wait. We Europeans can’t”. From here one has the Eurasian sense of unlimited expanse of the “legal environment”. Here there’s not just the legal field*, but also the steppe, the desert, tundra and taiga, and it’s all so very “legal”!   It was Saltykov-Shchedrin who noted that all the severity of the laws of the Russian Empire is mellowed only by the universal failure to implement them. This is a double-edged sword, since if one can mellow the harshness of laws in this way, then it is possible, as it transpired, despite the laws to kill millions of people as was the case in the Soviet Union.

Unfortunately, European Ukraine has inherited a Eurasian attitude to the law. Ukrainians feel themselves to be Europeans however their legal sense and upbringing remain Eurasian. The entire complex of problems connected with human rights, with the attitude of individuals to the law is a legacy of the USSR and the Russian Empire. Therefore laws are passed here largely for the purpose, or bearing in mind mechanisms, of bypassing the law, or using it for private or corporate interests, and it is for that reason that it is vitally important to overcome corruption.

And the most terrible thing is that the same happens with the Fundamental Law of the country which is aimed at protecting human rights and freedoms from the encroachments of the state. This is what takes place in the “legal tundra”!  The Constitution from the very outset was not passed as the result of a constitutional process in which civic society played a role. It was a political conspiracy of those in power and bestowed upon the people from above, without consideration of any ideas “from below”.  It was, and remains, too declarative to be a law of direct force.  And what did the “Constitutional Court” bought out by Kuchma do?  As lawyers joked, it discovered a new mathematical formula: “1+1=1” and applied this to the possibility of Kuchma standing for a third term in office!

It was all supposed to change after the victory of the Orange Revolution. Whatever it might be, it was nonetheless the Constitution that should have received a true Guarantor in the figure of President Viktor Yushchenko. Unfortunately however in his attitude to the law we see the same Eurasian mentality, the same political pragmatism, albeit three times “strategically important” and solely with good intentions, nay more, as with Lenin, “with the historical necessity” of uniting the nation!

Mr President! We are truly glad that you are the first Ukrainian politician with a historical way of thinking which understands the historical path of the nation and the role of the individual in history! We are pleased that you work in periods of time greater than months and years.  Yet when your actions violate the principle of the rule of law, excuse me, but this must not be done!

Is the entire modern political process legitimate? In our view, one can a priori cast doubt on the legitimacy of all that happened during the period when the Constitutional Court was not functioning. One can place in question all decisions which were passed and which are continuing to be passed since the coming into force of the so-called “political reform” [the constitutional amendments of 8 December 2004 – translator].until its legitimacy is affirmed by the Constitutional Court. And however much the illegitimate Prime Minister Yanukovych with the equally illegitimate Speaker Moroz may bellow about how the “political reform” has supposedly taken place and it can’t be revoked, this is simply the buzzing of two mosquitoes in a legal taiga.  Aquila non captat muscas (An eagle does not catch flies) – let them buzz!

Mr President, State Deputies from “Nasha Ukraina”, dear friends**! Enough of making a mockery of the law and of all of us! Make your submission to the Constitutional Court on having this dreadful “political reform” abolished!

And then the Main Law will need to be changed “from below”. So that the Constitution will not be a declaration, but a law of direct force, so that it will finally have a category which defines its role – the category of freedom, so that the Constitution becomes a powerful foundation of the state, and not a swing of powers which various political factions push to and fro, calling it so elegantly “the system of levers and counterbalances”, so that not only politicians can defend their interests in the Constitutional Court, but people can stand up for their rights also.

Incidentally, if one looks at the concept of “legal environment” , the question can be asked what our native environment actually is. Do we really live in the tundra, or the taiga? We need to finally beginning felling the legal tundra, raising legal virgin land and sowing a legal field*!

* the author has used the term in Ukrainian “legal field” throughout, however in most places this is the equivalent of the English  “legal environment”  [translator’s note]

**  “dear friends” was a phrase used very much by President Yushchenko which is often treated with irony these days  [translator’s note]