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19.10.2008 | Halya Coynash

Political “Monopoly”

   

A recent report revealing the extortionate cost of each law passed by Ukraine’s current parliament came as little surprise. No wonder that output was a third that of the previous Verkhovna Rada (no record-breaker for stability either). National Deputies had been far too busy to do very much legislating.  Their battles, antics and even balloons have made it almost clichéd to describe parliament as a big sandpit. The behind-the-scenes bargaining was hardly childish, but still less was it democratic.

The events around and following President Yushchenko’s decree dissolving parliament are more reminiscent of the game of “Monopoly”. The country, and those members of the international community who have not yet lost all interest in Ukraine, have been watching politicians openly using and abusing their “assets”, otherwise known as State bodies in their battle to retain, gain or deprive others of power.  Most disturbingly, they are equally blunt in their attempts to influence the judiciary and thoroughly irresponsible in hurling around accusations regarding the enforcement bodies and their behaviour.  “Monopoly” players are intent on grabbing everything they can. Only we’re not talking entertainment here nor are the world financial crisis and post-war situation in the region board games being played in parallel.

On Wednesday 8 October President Yushchenko in an extraordinarily bitter address to the nation declared that he was dissolving parliament.  He ostensibly had grounds either because of the departure from the coalition factions before the summer of two Deputies removing a fragile majority, or because the bloc “Our Ukraine” announced in September that it was leaving the coalition after BYuT [Bloc of Yulia Tymoshenko] voted together with the opposition on laws imposing restrictions on the President’s power.

There was strong opposition from the population to yet more elections and supposedly all sides were endeavouring to form a new coalition.  Here, however, we see the first key problem.  All negotiations were reported by one or other side, generally together with allegations of treachery, etc by their opponents. Unfortunately the media very rarely present alternative views and fail to ask both sides hard-hitting question. Without openness, offered or coerced, it is impossible to state with certainty whether all parties were genuinely trying to avoid a snap election.

President Yushchenko’s Decree No. 911 came into force on 10 October.  On that same day, BYuT lodged an appeal against the decree with the District Administrative Court in Kyiv. The latter – or specifically Judge Keleberda - suspended the decree dissolving parliament and prohibited the Central Election Commission [CEC] from taking any measures in preparation for elections.  10 October was fairly brimming with events, including one more Presidential Decree, this dismissing Judge Keleberda by revoking part of a decree from February 2007 (!) which had appointed him to office. Then on Monday, another Presidential Decree dissolved the actual District Administrative Court.

Among the many disturbing aspects of this squalid saga, we should mention the strange lack of effort to provide convincing grounds for the different parties’ actions. Certainly BYuT have presented arguments against dissolving parliament. They point out that according to the Constitution snap elections cannot be held until a year has elapsed since the last ones. They insist that the clocks only began ticking after the 2007 snap elections when the Deputies took their oaths on 23 November.  This does not, on the other hand, necessarily explain why the faction’ Deputies approached a district administrative court since only the Constitutional Court has the authority to interpret this constitutional norm.

Worth mentioning however that on 16 October Constitutional Court [CCU] Judge Ivan Dombovsky told journalists that it all depends on how the court application was formulated. For example, an application claiming unlawfulness of the decree (as opposed to unconstitutionality) should be examined by an administrative court. Almost a week has elapsed since the events which aroused apparently well-founded doubts as to the adherence by those in power to the rule of law, and we still don’t know what grounds were actually presented to the court.

The next question concerns the role of Judge Keleberda in suspending the force of the Presidential Decree. BYuT only mentioned the above arguments to journalists, and if they formulated their appeal to the court differently, focusing on an infringement of an ordinary law, they’re not telling. In fact, even if the application touched only the arguments above which are surely a matter for the CCU, the letter of the law states that an appeal against a legislative act should be suspended before the judge considers the case on its merits.  Yet this case involved a presidential decree and the merits were hardly blushingly hiding behind the door, too timid to reveal themselves.  The Judge must have known that the arguments, if these were what he was presented with, were well and truly outside his jurisdiction. If, on the other hand, the court application referred to an ordinary law within the judge’s competence, why not say so?  Faith in the judiciary is not some trivial bagatelle that can be sacrificed where expedient.

It is frankly difficult to find alternative ways of looking at the two presidential decrees which followed. Strange that the President’s representatives should have used a “backdated” dismissal to justify a claim that Judge Keleberda had quite simply not been a judge when he suspended the decree.  Accordingly to such “logic”, the new decree meant that Judge Keleberda was not a judge when he passed his ruling. If that were the case then he hadn’t bee a judge for a long time. One wonders whether the honourable President’s representative had considered the consequences for Kyiv of this judge-not-a-judge having held office for a year and a half. One feels that the sole aim was to prevent delay since time was short, and other considerations were simply brushed aside.

The hearing into the President’s appeal against the suspension of his Decree dissolving parliament has yet again been adjourned this time until 21 October*. This is at least in part because BYuT National Deputies [protected by their Deputy immunity] have been blocking both the Administrative Court of Appeal and the CEC.  It’s easy to understand why the judges are in no hurry, however whether they themselves sought protection, and who from probably depends on which version you receive. Both sides are shouting that their opponents are bringing pressure to bear on the judges, while they are cleaner than clean. It is obvious that delay suits the National Deputies from BYuT who want to make it impossible to hold the elections on 7 December. We can only hope that in blocking the court of appeal, the BYuT Deputies do not wish to abolish the right of appeal of all citizens, since they are undoubtedly trying to question the President’s right to this. 

t is highly disturbing that the perception is that the enforcement agencies answer to different “masters” with the Ministry of Internal Affairs supporting those who are refusing, so to speak, to be dissolved, while the SBU [Security Service] is supporting the President. This perception permeates the press and is widespread. When combined with unconcealed pressure on the judiciary, this is hardly giving people confidence in the basic tenets of a democratic society, most fundamentally strict division of powers.

The Guarantor of the Constitution in his turn dismissed a judge who had passed a ruling not to his liking. Whatever his grounds, and whether or not he believed the decision wrong, is immaterial and cannot be of significance in a law-based state.  It is not he who decides, but the court. Attempts to initiate a criminal investigation – before even an appeal had been heard - against the Judge for “a knowingly wrongful ruling” are no less worrying. That attempt was quashed by the Pechersky District Court in Kyiv on 13 October which almost immediately faced an attempt by the President to replace its Head Judge.

As far as the decree dissolving the District Administrative Court in Kyiv is concerned, President Yushchenko said at a press conference on 15 October that the decree had been at the initiative of the Ministry of Justice. Unfortunately, following dismissal of Judge Keleberda from this court, it is difficult to believe that there is no connection between the court ruling and the decree dissolving the court itself. Still worse, in this political “Monopoly” the Ministry of Justice is not necessarily perceived as an objective bystander. Nor is there any let up in this sad farce. On 15 October the media first reported that the Kyiv Regional Administrative Court (an appellate court) had suspended the force of the decree dissolving the District Administrative Court, then that the President’s Secretariat had lodged an appeal against this. The same day the Supreme Court made public a letter sent from the Head of the Supreme Court on the need to revoke the above-mentioned decree. The letter points to grave infringements, including the failure by the Ministry of Justice to agree any such dissolution with the Supreme Court as required by law. So even if the initiative came from the Ministry of Justice, the decree was still not lawful.

Stern warnings have been issued by the Heads of the Supreme Court and of the State Judicial Administration regarding the unacceptable politicization of the judiciary and pressure being placed on judges. There is no sign of any will from those in power to pay heed.

All politicians involved use the media, and even seek the support of international bodies, presenting themselves as defenders of democracy against the alleged treachery and plans to usurp power of their opponents. Rivalry and the drive to beat their opponent at any cost are taking precedence over all commonsense and logic. It is distressing to hear the unending stream of untrammelled abuse and recrimination and to watch how those in power are shaming Ukraine before the entire world, as well as placing the country’s interests in jeopardy during the worst global economic crisis in decades and in the light of increasingly strained relations with Russia. Yet most shocking is the fact that with their self-seeking and destructive behaviour the politicians are flagrantly undermining the independence of the judiciary, using State bodies for their own ends and treating Ukrainian citizens with a lack of respect and transparency unacceptable in a democratic society.  Let them establish their place in the pack in some other sphere and keep their hands off the law. It would be wise for them to think about whether they wish to explain to Ukrainians and the international community why specifically they feel entitled to destroy the foundations of a law-based democracy.  The question is heard more and more often, and it requires an answer. 

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