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03.03.2007 | Yevhen Zakharov

Political reform in Ukraine and European democratic standards

   

A well-known definition of democracy was given by Lech Walęsa: Democracy is a war waged by everybody against everybody under the control of the law. We certainly notice the war of all against all, however we have not seen any control over it for more than a year now, with the Constitutional Court effectively not working.

Ukraine cannot be considered a law-based state since the law is exercised specifically through the Constitutional Court.

All decisions taken in the absence of a functioning Constitutional Court are basically illegitimate and we need to be aware that they could be revoked.

The blocking of the Constitutional Court’s work was one of the most flagrant examples of a steadily growing trend to abuse of the law.

Ukrainian politicians are prepared to carry out any actions which they deem politically expedient regardless of whether these violate the Constitution or laws, or the principles of the rule of law.

For example, the former Speaker of Parliament Volodymyr Lytvyn deliberately put off swearing in new Constitutional Court judges, claiming that this was in order to ensure «order» and «stability» in the State.

The former Head of the Supreme Court Vasyl Malyarenko resigned for the period of the parliamentary election campaign –  formally – due to his inclusion among the first five names on the candidate list for State Deputy of  Volodymyr Lytvyn’s bloc.

In so doing, the former Head of the Supreme Court not only violated special legislation regarding the judiciary and political parties, prohibiting judges from any political activity, but also made his (mandatory) official appearance at the swearing in of the Constitutional Court judges impossible.

We can conclude that parliament during that period from October 2005 to April 2006 was trying to assume for itself the role of some kind of «main power» in the State.

It not only failed to appoint the specified number of judges according to its quota, but also prevented the judges already appointed from commencing their duties.

However severe this may sound, the actions of the Ukrainian parliament in this situation must be qualified as a dangerous encroachment on the principle of constitutional legality, and the political strategies used by former Speaker Lytvyn and former Head of the Supreme Court Malyarenko as politically motivated and a direct abuse of their official positions.

And when now Volodymyr Lytvyn sharply criticizes the «political reform» [the constitutional changes from December 2004] and says that there should have been parliamentary elections at the beginning of 2005, this only demonstrates his insincerity as a politician.

The insincerity, dishonesty and reluctance shown by Ukrainian politicians to call things by their own names, their disregard for procedure, lack of respect for the court and failure to implement its rulings result in neglect of the rule of law.

Another example of the same ilk is provided by the participation in the electoral campaign of the Authorised Human Rights Representative of the Verkhovna Rada (the Human Rights Ombudsperson), Nina Karpachova.

The prohibition in law on holding representative office means that the Human Rights Ombudsperson has no legal right to carry out any activities aimed at taking office in the direct future.

After all, participation in an election campaign as a candidate for State Deputy is a nationwide demonstration of political views and clear party preferences.

We should also consider the fact that Nina Karpachova effectively occupied the second place in the candidate list, after the leader of the party. All of this indicates that the image, authority and force of the office of Ukrainian Human Rights Ombudsperson were consciously used to advance the interests of a  specific political force.

In addition, if the aim indicated in the law is manifestly unlawful, so too are any specific and deliberate steps towards achieving this. Otherwise, we would have to accept an effective carte blanche for overt speculation on legislative norms, for abuse of formal law which is obvious to the public, and for disregard for legislative guarantees for the impartiality of the Ombudsperson.

Unfortunately Nina Karpachova resorted to open, if not cynical, abuse of the law during the parliamentary election campaign. Later, having been elected to the Verkhovna Rada, she did not resign of her own will from the post of Human Rights Ombudsperson, this violating the provisions of the law prohibiting the combining of this office with a Deputy’s work.

One could go on and on citing examples of abuse of the law. This abuse is seen not only in the form of actions, but also as inaction.

For example, the President was simply obliged to approach the  Constitutional Court with regard to the conformity with the Constitution of the procedure for voting for changes to the Constitution as part of a «package vote», together with changes to ordinary laws. However political deals proved more important for him than his duties as Guarantor of the Constitution and human rights.

The fatal consequences of the so-called «political reform» demand its review.

Since December 2004 human rights organizations have on many occasions publicly spoken about the dangers inherent in these changes. It is galling to observe today how all our predictions are coming true. Its implementation has led to competition between legitimate and real centres of power – the President and Prime Minister – within one executive branch of power with this leading to the country becoming ungovernable. It has created a rift in the unity of foreign and domestic policy, introduced principles of the worst political collectivism, transforming Members of Parliament into voting machines, totally dependent on the will of their leaders, or I would even say, owners of their factions.

The changes have substantially increased the influence of the selfish interests of powerful financial and industrial groups on parliament, reducing at the same time people’s access to power.

There is also another aspect of the «political reform». It is nothing more than a conspiracy of the rich against the poor. John Rawls’ principle of «inequality of benefit to everyone» does not work in Ukraine, and the constitutional changes are clearly hampering its implementation.

And what kind of democracy and rule of law in Ukraine can we seriously speak of when an unemployed former parliamentarian has gained the right to receive on a monthly basis approximately four times the salary of a current member of the National Academy of Sciences of Ukraine, or approximately 6 times the salary of a professor in a Ukrainian university (Fourth, i.e. highest, category)?  One current Deputy costs the Ukrainian State as much as eight members of the Academy, or 12 professors, or 26 surgeons, or 40 teachers in secondary schools. The pension of a former State Deputy wavers between 80-90% of that which s/he received when in office.

The wage differential for all those working in state-funding institutions is equivalent to 1:40. This data is concealed in documents on limited access not available to the public. For comparison, in the Western Europe the ratio is 1:4, in the USA – 1:5 and these figures are open and stipulated by law.

The experience of the past months have demonstrated conclusively that Ukraine cannot presently function as a parliamentary republic.

Our young democracy has simply not matured sufficiently for this. Our political parties are only able to divide people into their own and others, and the totalitarian thinking of Ukrainian politicians is not capable of encompassing parliamentary democracy.

Our politicians are not able to make agreements, reach compromises. They seem able only to coerce their opponent, insult and try to overcome them.

We need to understand that the amendments introduced into the Constitution create objective reasons for political confrontation in society. It is therefore necessary to review the principles of Ukrainian politics set down in the Constitution.

I don’t know how this will be done – through the Constitutional Court or by introducing new amendments to the Constitution but it must be done.

Chamberlain once wrote in a work entitled «Ukraine – a subjugated nation» that the Ukrainian political elite constantly betrayed its own people.

However he wrote those words about times of political lack of freedom, whereas now we are observing the moral betrayal of the Ukrainian people by the elite under conditions of State sovereignty.

The old opposition of «them and us», which had slightly receded over the last two years, is again coming to the forefront.

I saw this telling text just yesterday in a letter from one of the rank and file members of the «Batkivshchyna» [«Motherland»] Party:

«They’ve» taken all our national riches from us, and they’re now concentrated in the hands of several hundred families.

«They’ve» taken from us the right to elect worthy people to the Verkhovna Rada. We are forced to vote for «their» party lists.

«They’ve» taken from us the right to have impact on the policy of the country via the President, having taken away his powers.

«They’ve» taken from us the local councils, and now, after introducing the Law «On the imperative mandate», they are overtly making them subordinate. Farewell to local self-government! The fate of any territorial community will now depend only on the will of the «party curator» of the given territory.

«They» want new elections to finally get rid of all others.

The recent political reforms have brought the political elite and the people into conflict.

At an intuitive level I feel that this conflict cannot last very long, it must in some way be resolved. Society in its present state cannot coexist with authorities organized in such a way.

I think that we will soon see how that takes place. For this reason, I would like to mention two fundamental points.

Firstly, the Ukrainian national idea emerged from the idea of freedom. The vast majority of the participants in the biggest uprisings in Stalin’s GULAG – at the Kengirsk and Norilsk camps – were Ukrainians.

The «virus of rebellion», the thirst for freedom, the will to freely determine their own fate were so intense specifically among Ukrainians. It was they who inspired people to rise up albeit in the face of inevitable death.

This was what inspired the Shestydesyatnyky, [the Sixties Activists] who went to the camps for the right to call things by their own names, it was this that inspired people during the autumn of 2004.

I would advise Ukrainian politicians to remember this.

Secondly, all modern history demonstrates that a political regime which violates human rights and the rule of law ever more overtly is sooner or later doomed.

 

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