Human Rights – Change of Paradigm?
Constitutional Law Expert of the
Kharkiv’s Human Rights Protection Group
Human Rights - Change of Paradigm?
Ukraine’s political reality never fails to surprise. The presidential elections had only just ended when in Ukraine’s civic and social-political life the silhouettes of new (not only staff-related) approaches began to shape out. Specialists assessed the signs of the new life in different ways however they couldn’t fail to notice that virtually nobody was able to provide a full picture of what was really happening. If there is a style, then it’s most likely post-modern. That is, the new style is that there is no style. That is possibly precisely the new sign of the times.
We all still remember L. Kuchma’s sacramental expression that “the national idea did not prove justified”. After the exhaustion of V. Yuschenko’s presidential resource, one could it seems say, that the liberal idea did not prove justified. Another step and next in line is registering the fact that our time is one of conservative ideas. Yet are the Party of the Regions members really conservatives? In my view the latest Ukrainian paradox lies in the fact that despite their liberal rhetoric, the real conservatives were Y. Tymoshenko and V. Yushchenko, and signs of (economic) liberalism are demonstrated more by V. Yanukovych together with M. Azarov and S. Tihipko.
Firstly, the regionals’ declared capitalism is at the moment much more reminiscent of real capitalism than the form overburdened by patriarchal-paternalistic concerns presented by Yushchenko and Tymoshenko. The capitalism of the latter was restricted, national-State-dominating, and therefore, dubious. The new capitalism is cosmopolitan, therefore, real. Build, produce, sell, buy - to all and everywhere possible. Russians are closest, so to them in the first instance. At the present stage Medvedev and Putin are not our fanatical supporters however what is better at curbing suspiciousness and potential wars than trader caravans, joint production and trade?
Unlike his predecessor, Yanukovych does not particularly collect icons and old things, seeking prosperity in the manner of an east-European nabob. You can’t call him a traditionalist which means that his positive image is formed with difficulty in the eyes of a considerable number of members of the Ukrainian intelligentsia. One can even say that “enchantment” with Yanukovych in Ukrainian society is a considerably harder process than disenchantment with Yushchenko. However for the present, in my view, Yanukovych is slowly but steadily gaining ground.
If Ukraine were less variegated in its tastes, limited nationalism would not be a problem. However in the present conditions of socio-cultural schism of the country, technocratism (cosmopolitan pragmatism) can be a useful alternative. It is by no accident that I. Lysyak-Rudnytsky wrote that what Ukraine lacks is not epos, but logos. It is also clear that it was not from something good that Hrushevsky wished to “wrench” Ukrainian culture from the Slavonic embrace, and Tomashivsky - to “end with the cult of Taras Shevchenko”. Mikhnovsky’s fanatical patriotism was also an undoubted national constant however it was Mikhnovsky who spoke out at the beginning of the twentieth century against “Ukraine of embroidered shirts”.
Paradoxical as it may be, if we wish to retain unharmed the very nation, then we are perhaps doomed to be “cosmopolitan”. One is at least prompted to such a conclusion by the stereotypical tragic nature of the fate of our national victors. Back in the 1990s Ivan Dziuba wrote an impassioned essay “Ukraine and the World” which ended with a concise list of our lost prospects - the naïve hopes of those sincerely dedicated to the Ukrainian idea. However it is time, as we know, that heals illusions. Although Tymoshenko has not just made one “overt” declaration of love for Ukraine before the television cameras, her fiasco was ensured precisely by the intelligentsia who understand the possibilities and dangers of the word.
Therefore the tenet of Lev Gumilev “in friendship, but apart” could become our conscious and subconscious imperative not only for relations with the Russians. This formula lends itself easily to various types of speculation however it has been and promises to be productive if treated rationally and with moderation.
As for political tactics, the marvellously swift by Ukrainian standards creation by Yanukovych of a government can be considered a violation of the Constitution, but also a return to commonsense. For the constitutional changes of 2004 with their deputy mandate hobbled by party influence, was true embodiment of legal absurd. In 2005 Ukrainian constitutional legislation so diverged from the demands of organic normative principles that without its reassessment the country simply has no chance of getting on its feet again. The law should be above human passions and emotions, however not absolutely. For only those laws are inviolable which embody human reason. In the life however of a young democracy the laws not infrequently contain the most various forms of political searching. The fact that the Ukrainian constitutional changes of 2004 were a regrettable mistake of the growing process was never for me in doubt.
Article 80 § 2 of the Constitution guarantees National Deputies free mandate. And if the deputy is really free, than no factional or coalitional discipline can and should be an absolute. The coalition should in general only exist up to and for the creation of a government. As soon as the Cabinet of Ministers is formed, the prolongation of the coalition becomes redundant. Individual ministers can be changed without a coalition, through the efforts of the Prime Minister and leaders of the factions. In all else, the “post-government” existence of the coalition only does harm since the fate of the government and stability in the country can depend on the position of several deputies in the future.
A single deputy thinking about joining the coalition automatically becomes the object of political intrigues. In my view, the deputy majority thanks to which our Cabinet of Ministers was formed could have done without the coalition from the beginning as under the Constitution of 1996. Ukrainian collective and personal membership in the coalition really means little since it cannot prompt deputies to vote for or against any specific issue. As for party ideology and the corporate “elbow push”, they are still at the formation stage in Ukraine. A real party system, coalition government, balanced factional discipline is still to a large extent in the realm of the imagination in Ukraine.
The above does not of course formally justify the circumstance-prompted Judgment of the Constitutional Court of 8 April 2010 which found lawful the existence of a coalition on the basis of a union of factional and individual members. The Constitutional Court followed not so much the original thinking behind the Constitution, but commonsense and the needs of the moment. However the nature of the latter does not fit in well with the formalistic shell of court judgments. As soon as the sinners in the coalition win, thanks to one trick, they will be forced to seek the virtuous among themselves to counter another. After all, individual membership in the coalition is convenient both for the accelerated creation and for the accelerated fall of a Cabinet of Ministers.
In essence permission for the formation of a coalition with the help of individual deputies means permission for the support of the Prime Minister on the basis of personal liking and trust. Yet strictly speaking National Deputies always had this possibility. One can in general say that the present situation demonstrates not so much a battle of “politicians” and “lawyers” in judges’ chairs, but the ambiguous state of the Ukrainian constitutional system. Since Ukraine is still muddled in its choice of constitutional axioms, the formulation of legal theorems (the main task of Constitutional Court judges) sometimes leads in Ukraine to paradoxical results.
Corporativism and excessive party discipline compete in Ukraine with free deputy mandate, since the paradigms of the already muffled socialism and still under-developed capitalism remain ideologically competing paradigms in Ukraine. The prohibition of imperative mandate is a bud of political freedom, liberalism of a western modern and type. On the contrary, hypertrophied demands for party and factional discipline are a product of Soviet democratic centralism. We thus live in a state of axiologistic duality of political text and context.
Yet another example of an essentially artificial formulation of the issue is criticism of the Law of Ukraine “On the Regulations of the Verkhovna Rada” from 9 March 2010. It is indeed convenient to carp at this from a juridical point of view. After all, the very name “Regulations of the Verkhovna Rada” is an indicator not so much of legal force as of the functional purpose of a normative act. That is, in itself the existence of a text with this name does not formally satisfy the requirements of Item 21 of Article 92 § 1 of the Constitution which states: “The following are determined exclusively by the laws of Ukraine the organisation and operational procedure of the Verkhovna Rada of Ukraine, the status of National Deputies of Ukraine”.
The Constitutional Court at one time found the “Regulations” (as a Resolution of the Verkhovna Rada) unconstitutional, since according to the Constitution they needed to be a fully-fledged law. Did the Regulations become a fully-fledged law after 9 March 2010? One feels that the answer is negative since after all any law of Ukraine which affirms other normative act does not turn the latter into a part of the law. For example, the Constitution of the Autonomous Republic of the Crimea is specifically a constitution, and not a law of Ukraine, just as the international agreements ratified by the Verkhovna Rada are not laws of Ukraine. Such acts have a specific level of stability and juridical force. For example, the Constitution of the Autonomous Republic of the Crimea does not require a majority of the constitutional makeup of the Verkhovna Rada, while international agreements ratified by law remain legally higher than Ukrainian laws. Moreover such sources of law are not subject to the classical rules of the legislative process, and amendments and additions to them follow separate procedure.
All of that yet again proves that at the level of current legislation it is not easy, if possible at all, to eliminate the inconveniences of the Constitution. If Item 15 of Article 85 of the Constitution, changed in 2004, adds to the powers of the Verkhovna Rada the “passing of Regulations of the Verkhovna Rada of Ukraine”, while Item 21 of Article 92 § 1 states that the Regulations should be a law, then the simple “approval of the “Regulations” by law can only formally resolve the clash. However should criticism of the coalition for such an action be on principle unyielding? Since Ukraine’s ills, as O. Ksyonzhek wrote, are serious and cannot be cured with pills, then criticism of the regionals for such failings would seem mere time-wasting.
What in that case remains important? I will endeavour to answer this from a somewhat untraditional approach. In Ukraine what are important are... “trifles”, the nuances of changes in the formal and informal status of the individual. We are talking in the main about the formation of a feeling of worth (“sovereignty”) in the Ukrainian person, about their natural individualism, struggle for recognition and prestige, the perspective of separateness in the overall perception of the world. In my view modern Ukraine has only one vector for the formation of unity among citizens - an ever deeper awareness of the value of the individual beginning. Vaclav Havel wrote about this in connection with Czechs and Slovaks. The drama of forced collectivism is dominant in the prose of Milan Kundera. Today the works of the Czech star are widely published in Russia and very popular in Ukraine because it is precisely now that Ukrainians are ready to understand them. It remains only to be regretted that Ukrainian reading for the moment runs far ahead of reality.
After all we continue to live according to a Constitution in which socio-economic rights are written out almost like an ideological drug in a totalitarian state. Their full content is such that no democratic coalition or liberal government could guarantee them. In fact positive socio-economic rights should be only for those in difficulty not of their own making.
At present many understand that State-concentrated economic paternalism is an enemy not only of the market and economic freedom. It suffocates the whole living atmosphere in the country. Yet it is specifically paternalism, and in its most repulsive, sentimental various that remains the inspiration for the economic rights of our Constitution. If the authorities are really satisfied by Section II of the Constitution then they are doomed to permanently spoon feed the people and lead freedom by the hand. It was incidentally precisely this logic that not so long ago encouraged Tymoshenko to meet the plane with medicine in Boryspil as they greet humanitarian aid in Rwanda.
The average pay and pension in 2008/9 in Ukraine was 170 and 74 euro per month, respectively; in Poland - 650 and 313; in Slovakia - 732 and 337; in Hungary - 701 and 290; in Lithuania - 635 and 235; in Latvia - 668 and 251; in Estonia - 776 and 291; in Slovenia - 922 and 636 euro per month. With regard to the GDP, in Ukraine during the same period this was 3920; in Poland - 13799; in Slovakia - 16240; in Hungary - 15542; in Lithuania - 14086; in Latvia - 11909; in Estonia - 13981; in Slovenia -27149 USD per person (“Ukrainsky Tyzhden”, No. 39, 2009). The economic position of Ukrainians is virtually the worst in Eastern Europe and the list of constitutional socio-economic rights one of the broadest.
That is, our Constitution looks like a classic “law for the poor” - it is wordy, maximalist and full of unattainable obligations. Of course one can draw up a new economic approach for the Constitution (A. Novak suggests interesting ideas in this respect), however then the question immediately arises of what to do with the millions of present victims of a plan and distribution based system?
A palliative way out of the situation could be a transfer from “real” socio-economic rights to guiding rights, according to the model of the International Covenant on Economic, Social and Cultural Rights from 16.12.66; rights-guarantees of the European Social Charter from 03.05.96; rights-principles of the Charter of Fundamental Rights of the Union (addition to the Treaty of Lisbon from 01.12.09). Such a step would also promote the development of creative freedom of the individual. While the present statistics for Ukraine show that our country is doing something illogical from the point of view of the global economic instinct. We lack the simply juridical packaging and forms for a primitive “flowing” of economic enthusiasm. The sense of freedom generates initiative, yet do Ukrainians have legal stimuli for attaining freedom?
At present in the country we see the regular prolonging of a state of conscious and subconscious distrust of the State for the active individual. For example, the entire budgetary financial and tax system is built on the presumption of the helplessness of the person carrying out economic activity. Yet without fundamental establishment of the rights of the producer and owner, the contemporary economic system cannot work. The latter are clearly not angels, yet without ethics of the irrational (faith in the egoist) in the economic sphere, as Fukuyama writes, Ukraine cannot climb out of the bog it’s in. It has long been time to understand that the more genuine capitalism unfolds in Ukraine, the better people will live.
According to unofficial sources people spend almost ten times more money from their own wallets on medicine than what is officially envisaged by the State budget. Moreover two thirds of the total amount is paid in the last six months of a person’s life. This grotesque situation is a typical result of the efforts of the Ukrainian social State. In fact Ukrainians do not need to borrow from the Federal Republic of Germany’s Constitution, but basic respect for market laws, at least some kind of employment, simplified licensing, registration all at one place, a system of services in the provinces and cheap loans.
A living example of our economic chaos is the fact that Lviv residents waste 6 months or a year on the banal process of privatizing plots of land attached to their homes, while the express train “Kyiv - Kharkiv”, one carriage of which brings in profit of around 1500 USD per day travels for months on end with toilets smashed. Or we need only mention the widespread phenomenon of “dead souls” in the system of vocational training in the Kirovohrad region. The person who can optimize the routine of non-market everyday life has a real chance of becoming our next President.
Free sale and purchase of land is a classic (“Waiting for Godot”) Ukrainian topic. It is well-known that Hrushevsky rated a good land law higher than an epic poem of genius. Yet there are a fair number of great poems in Ukraine, yet commonsense in the use of land is missing. Oleksandr Moroz was against a land market and lost his post. Natalya Vitrenko and Petro Symonenko are also against it on principle, however their electorates are ever dwindling. Yushchenko spoke out for freedom of agricultural workers rarely and without consistency and the verdict from the villagers was not long in coming. Speaker of parliament V. Lytvyn is yet another pessimist in the agricultural sphere and he therefore openly takes a risk at the elections. However the land and the constitutional norms about it are not the only sign of national health or illness.
Even under communism Poles did not let their private land be ruined and now the Polish countryside produces a European mentality no worse than Krakow University, since the sense of collectivism for a villager is his union with house and land.
Critics of Ukrainian capitalism correctly note that without the rule of law Ukraine risks slipping into a Latin American economic model. Therefore, in order that corruption does not destroy Ukraine, it is necessary to modernize legislation and the law enforcement system. This will lead to changes in the legal infrastructure of business and trade. Those who believe in capitalism doubt Ukraine’s capacity to legally provide the conditions for honest competition in the market. However there is no capitalism without conflict. Although the economy’s boiler should be stopped from overheating, the water in it should nonetheless boil. It is no accident that Lech Walęnsa spoke of Polish economic growth as “a war of all against all under the control of the law”.
In fact corruption is maintained not only by the State’s presence in business or trade. Recently Ukraine’s parliament for the next time suspended the coming into force of a package of anti-corruption laws. Outwardly that seemed as though hypocritical politicians were again trying to deceive the Ukrainian public - they drew up the laws, but they don’t want to fight corruption. At least most media outlets reacted in that stereotypical manner. Yet it is premature to whine, since the reason for the delay, as I understand it, lay elsewhere. Our anti-corruption legislation, as in the majority of countries similar to ours, is too strict (harsh) and therefore unfeasible.
One imagines that a majority of Ukraine’s population would welcome the introduction of twenty-year sentences for taking a bribe or theft. However the severity of the punishment is a less effective measure than its inevitability. In Soviet times the introduction of the death penalty for rape led to the rapists beginning to kill their victims since they could testify against them. A trivial example, however life imprisonment for bribe-taking as was proposed by honest politician A. Hrytsenko would not lead to the elimination of bribe-taking in the State system. The law more often loses rather than wins in the fight against an instinct, for which reason an experienced judge, prosecutor or investigator is intuitively disinclined to use severe sanctions in such cases.
In general excessively severe legislation is a sign of hypocrisy or naivety in the law enforcement system. In many cases such an approach is evidence of political infantilism, camouflage for the simple wish to please people. In fact, when drawing up anti-corruption legislation, they should have worked from the real idea of possibilities (limits) of legal regulation. As Hubert Spenser wrote, a law which makes excessive demands on the person is essentially criminal. In the criminal sphere laws which are moderate, but able to be realistically applied work better than severe but a priori dead juridical norms. As lawyers know, a hefty fine can be more effective than a long term of imprisonment.
In court reform it is also worth not working from abstractions, but from the real possibility for the average Ukrainian to gain justice, truth. As local judges report, Ukrainian legal proceedings remain systemically out of harmony with the handing down of acquittals since the legal machine forces them to work according to instructions from above. Our courts and judges do not try people, but carry out court policy. As part of the latter, for example, it is considered to release people actually innocent as formally guilty under an amnesty. For example, we know of a case where one person was acquitted twice in a row, with this being later changed each time due to a discrepancy with the statistical expectations of higher court levels.
The primitivism of the fight with corruption has led to the heightening of bureaucratic control over the passing of court rulings. However such formalistic control destroys the very ethos of the court system. After all any court policy can still not delve into the essence of a specific case. It demands that judges apply a fixed model, yet what is worse in courts than to ignore an individual approach? One sometimes has the impression that judges are mesmerized by such higher sacral force. In fact this force is like that of a handful of State mandarins who push Ukrainian court proceedings into carrying out conveyer-belt operations. The correct approach to the problem of corrupt in the courts should be viewed as the opposite: we need to create a strong personality, personalize the Ukrainian courts.
The present malaise of Ukrainian courts and judges is the lack not so much of professional competence, as that of a modern world view, culture, sense of personal dignity and the mentality of an arbiter. There are not so many honest, well-brought up people blessed with intellect, yet do they have a real chance of entering elite faculties? The “National Yaroslav Mudry Law Academy” takes a considerable number of its students at the recommendation of the law enforcement agencies. Yet just in this young people together with the referral, receive their first negative experience of corporativism.
The exercising and upholding of civic rights and liberties are also to some extent influenced by the “materialistic” type of consciousness of many educated Ukrainians. As the political analyst V. Kuchabsky wrote in the first half of the twentieth century, “the desire for material prosperity given a lack of personal and civic morality promoted the spread among a considerable part of the intelligentsia of such features as political and personal venality and even thievishness”. (Potulnytsky: The History of Ukrainian Political Science”, Kyiv - Lybid, 1992, p. 165)
According to Professor S.Tomashivsky, the inability of a considerable part of the intelligentsia to engage in real scientific research or artistic creation, to find religious peace resulted in striving for power and authority, the right to rule over those like them. Since then time has passed, yet this continues to be an issue. Servile intellectuals in a poor country are partly to be anticipated, but this does not make the situation better. I recall how on Tymoshenko’s birthdays a well-known Ukrainian architect declaimed her own panegyric. Now this talented woman is complimentary to the President and finds signs of plebeian features in the physical constitution of the former Prime Minister.
Unfortunately the Ukrainian public would seem to have already got used to the lack of correspondence between words and deeds, elementary rudeness and chronic failure to keep promises. In 2007 the author of this text had occasion to send 150 books on symbolic reality to various libraries. Twenty copies were sent to American libraries, the rest to information centres in Russia and Ukraine. In a month all the American addressees answered with a postal letter of thanks, at home by email only one Russian library responded. It is clear that in the given case we are not talking about forgetfulness or difficulties finding envelopes and paper. We see signs of mass psychological closeness of people, a lack of human capital.
Before he became President, John F. Kennedy made a trip to the Soviet Union. According to one of his biographies, after returning home he described the USSR as a “rude and cruel country”. At that time Ukraine was part of the Soviet Union, so these words also concerned us. At the present time, having achieved independence, we should think about our everyday style, and not only about international loans and gas contracts.
An important aspect of reform in Ukraine is higher education, for all too often the fact that the American (Bologna) system seeks to make understandable, transparent and open for all, the Ukrainian model still wants to makes secret and confidential. Ukraine’s universities need absolute transparency of criteria of entry and a written form of all exams which is taken by students or PhD students at the faculties. A written exam makes it possible to record the text making it easy to appeal the mark. Clearly in this case we are talking about content created in an auditorium under invigilation. If at present around one in five graduates of Ukrainian law institutes cannot distinguish the government from the parliament of a country, this is evidence not so much of basic ignorance as systemic problems.
Correctly organized selection of students makes it possible in future to make reliable rating tables of graduates. Having truthful ratings according to a multiple score scale, one can identify the potential top students. One can in general say that reliable, multi-factor rating of graduates is the purpose and ethical justification of the education system. Yet what kind of role of the rating can we speak of when in Ukraine they sometimes pass all of the students of the pre-final year class of a master’s degree! Unfortunately our system of higher education even in its best models does a bad job at stimulating what is unrepeatable in the individual, what distinguishes the student from others. It is very often simply oriented at a speculative ministry statistic which one doesn’t even feel like commenting on.
A master’s degree is the lowest, yet at the same time, first academic level which requires from young people special abilities and talent. Yet in Ukraine, holders not only of a master’s degree, but also of a candidate or doctor of sciences, are virtually statistical categories. They are produced in the necessary quantity according to a ministry plan. Furthermore, only a small percentage of students fail in State institutes. For comparison, in Western Europe the figure is almost 7-10 times higher, while in Germany around half of the first year law students get to the final stage.
As we know, the professional training of judges should envisage professional schooling together with the developing of the personality, the formation of a sharp and independent intellect. Yet how can one develop dignity and autonomous thinking in conditions where law studies in Ukraine are openly corrupted by political influence? For example, Ukrainian professors of law, receiving a salary which is 5-10 times less than that of a National Deputy or Constitutional Court judge, write free cribs for them on how one should properly understand the Constitution and laws of the country. All of that is a virtually replica of the relations between the Communist Party of the Soviet Union and “leading Soviet science”. The authorities not infrequently simply state the political aim, instructing the scholars to provide justification. It is not therefore surprising that legal science, as in the days of the Ukrainian SSR, is in humiliating intellectual slavery with respect to the country’s establishment. For comparison: an independent assessment in a German university will make a professor 3-5 thousand euros wealthier.
Legal science suffers even more from the Higher Qualifying Commission of Ukraine [HQC] which goes wild in its formal bureaucratic fervour. For example, defending a candidate or doctor’s thesis according to HQC rules requires roughly 70-75 formal stages (certificates, signatures, resolutions, confirmations, documents agreed). It is this admonitory mechanism which makes an academic career attractive to people of less a creative, than a dogmatic character. What is even more absurd is the fact that 99% of the documents confirming the quality of work and defence of documents are drawn up in Ukraine by the person presenting the thesis.
Furthermore, dozens of certificates and stamps with signatures in fact destroy a person’s free mind and moral self-assessment. An ailing system has gradually emerged here under which one lot of formalist dogmatists teach other, and this is wave after wave, generation after generation. I would dare to assert that for HQC academic talent does not exist at all, because this institution has long ceased to be a guarantor of science, but has turned into its strangler, its antipode.
Scientific criticism in Ukraine is paid for by candidates for a degree in just as widespread and private a manner and is “free” medicine. Not only are dissertations written to order, but also the answers to opponents. In the summing up no serious conflict arises because with such an approach the very subject of academic discourse becomes diluted.
When a high-ranking government official who is seeking an academic qualification comes up with something just totally unacceptable, the situation is rescued by the fact that the vote is secret. It is this which ensures the marvel of turning black circles into while. However, to be fair, it must be said that one does encounter academic principled behaviour in Ukraine. The law specialist and academician Mark Tsvik once had the courage to not recognize the academic aspirations of a candidate with power, and that was not at all the same as to ignore the defence of the liberal former minister S. Holovaty.
Under the given conditions servility of lawyers is in general predictable, and even systemic. All countries that went through totalitarianism have suffered from such a malaise. However what is in question at present is not so much the illness, as the attempt to be cured of it. China is the third main power in the world has gone along the path of recruiting Harvard and other top university graduates to key academic posts. The education systems in the Baltic States have acted in a similar manner. Young Ukraine made an orange leap in 2004/2005 however was yet again betrayed by those at the top. Yushchenko and Tymoshenko, both totally Soviet-educated did not send students and PhD students to study on State funding to the West. There was no revolution in the Ukrainian academic and educational system, and so Europe provides Ukrainians west of the Wisła not with academic qualifications, but fashionable clothes, jewellery and exclusive cars.
According to Oxford Professor F. Crencross, Ukrainian scholars have a poor knowledge of English which cuts them off from the academic community. They are also inclined to tolerate plagiarism and do not take great effort to follow new academic developments. As a result too many graduates of Ukrainian institutes are not suited for professional work. After finishing university they have to again be put behind desks and taught modern manners.
Unfortunately V. Semynozhenko and D. Tabachnyk do not give off the impression of people who have a firm understanding of how Ukrainians are to become educated and cultured in the modern fashion. It also remains to be seen whether they agree that science is Euro-Atlantic in spirit. For the moment, Ukrainian colleges and universities, unlike Polish or Czech, do not provide students with academic freedom and fluent command of English as a means of communication in the academic world.
Ukrainian professors also have no firm command of English. As we know, western academic exchange programmes have been working in Ukraine since around 1992. Since that time several hundred students and academics have spent time in the USA under the Edmund Muskie, IREX programme and Fulbright scholarship (the largest US State programme for academic exchange). This is a drop in the ocean if we think about the real needs of the country. There are, of course European academic and educational programmes functioning in Ukraine, but even together with the American ones, they cannot provide the level of academic and educational exchange which Polish, Czech and Hungarian students and post-graduate students now have.
Unfortunately legal safeguards for freedom of speech also remain extremely inadequate. We are speaking here specifically of legal guaranties and not of the actual situation as regards intellectual freedom in society. After the Orange Revolution Ukrainians enjoyed freedom of thought and speech yet since that time the country has not managed to change the old constitutional mechanism for protecting intellectual freedom for a new, more contemporary version.
According to the 1996 Constitution, the exercising of the right to freedom of thought and speech (Article 34) “may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice”
In practice this list of restrictions makes it possible to prohibit the circulation of any printed or audiovisual products since an ice cream can give a child a cold, and the interests of national security are a traditionally strong argument for crushing opposition media outlets. In this sense the Ukrainian Constitution, in contrast to better developed legislation of European Union countries, does not contain religious safeguards for freedom of intellectual self-expression.
International experts (for example, Professor H. Stenton, USA) warned the working group of Ukraine’s Constitutional Commission of such dangerous prospects back in 1992. According to specialists, the wording of the articles of the draft Constitution on freedom of speech seemed like the “dream of a tyrant” even then. For example, in 1996, Professor V. Shapoval wrote about the Constitution as about a document which expressed the interests not so much of civic society, as much as of the State, its apparatus.
On the other hand, the Constitution prohibits censorship (Article 15) which formally makes it possible to restrict freedom of speech in Ukraine not a priori, but post fact. That is, in Ukraine it’s not possible to prohibit the printing of a book, but you can stop its circulation. This effectively means that the boundaries for the exercising of freedom of speech in Ukraine are an question not of the law, but of political culture. Almost all that is printed which the authorities deem dangerous for them can be subject to formally legal restrictions and prohibitions. If during the period of the Ukrainian SSR in the Vernadsky Scientific Library in Kyiv the works of Sigmund Freud were only handed out to people with doctorates, now the same can be said of Hitler’s Mein Kampf.
Thus, according to its level of development of guarantees of freedom of speech, modern day Ukraine can be placed among third level countries. The first level in our day is represented by the United States of America (the American paradigm of freedom of speech on the basis of the First Amendment of 1791 envisages virtually no restrictions on an individual’s intellectual self-expression). This means broadly that in the USA only such cases of abuse of freedom of speech are considered dangerous as lead to the carrying out of violent acts directly at the moment that the content is made public.
To the list of second level countries should be included the majority of the old democracies of Europe. Here in addition to Article 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms from 1950, there are the rights enshrined in the Charter of Fundamental Rights of the European Union (supplement to the Treaty of Lisbon from 01.12.09) academic freedom; enshrined in the same Charter immunity for freedom of speech in literature, science and the arts; the admissibility of restrictions in the exercise of freedom of speech only under condition that this is necessary in a democratic society (when the symbolic danger is not overcome organically, by itself).
In general cases of restriction of freedom of speech are rarely encountered in contemporary Europe. As regards academic freedom (freedom of universities), this is a legal institution not known at all in Ukraine. Yet it is this which makes it possible to protect the intellectual realm from dangerous State or corporate influence. In the USA academic freedom of speech is significantly strengthened by professorial tenure - the holding of academic rank and position for life.
In contrast to this, freedom of intellectual self-expression in CIS countries, including Ukraine, depends less on legal guarantees as on the general culture, level of awareness and tolerance of the political class of the country. This situation is hardly satisfactory for a potential member of the EU. The safeguarding of freedom of speech in Ukraine at today’s level thus requires formal and informal efforts of all involved. Besides academic freedom, immunity for freedom of speech in literature, science and the arts needs to be constitutionally enshrined, as well as the right of access to information in the possession of State bodies and bodies of local self-government, etc.
A useful innovation to legislation could be the establishing in the Constitution of freedom of self-expression (freedom of speech) in the form of a normative principle-prerequisite for exercising any policy or right. This would effectively mean a ban on the revoking or restriction of freedom of speech in accordance with a referendum or at the decision of the Verkhovna Rada.
Although censorship in Ukraine is prohibited, its functions have de facto been carried out recently by the National Expert Commission of Ukraine for the Protection of Public Morality whose new makeup was approved by the Cabinet of Ministers on 17 June 2009. This is headed by correspondent member of the Ukrainian Academy of Legal Sciences Vasyl Kostytsky, and includes former ministers, academicians, writers, National Deputies, journalists and people involved in the arts.
In this respect I would like only to note that if Ukraine really needs some kind of new government commission then this should be a commission for introducing book and audio and video shops like “Border’s Books and Music”, “Barns and Nobel” and Tower Records. After all the biggest bookshop in Kyiv “Scientific Thought” is around 20-25 times smaller than the bookshop Chapters in the Canadian city of Kingston with a population of 150 thousand.
For a start it wouldn’t hurt for Ukraine to have at least one university built on the principles of academic freedom, albeit one truly higher type of scientific library. Instead at present we have a situation where the Director of the Institute of Philosophy of the National Academy of Sciences (Myroslav Popovych is also a member of the above mentioned Commission on Public Morality - translator) is busy with eradicating sadomasochism and the library of the elite Academy of Legal Sciences does not have even one card in its catalogue with the name Jean Baudrillard.
The degree to which Ukraine is behind Western Europe and the USA where ensuring information is concerned is now so dramatic that the Ukrainian public through their provinciality do not always realize what is in fact involved.
The information infrastructure for science and education in Ukraine is at the level of a crèche if we compare it with European and American academic standards. In addition, the instructions and recommendations of the Higher Qualifying Commission not only fail to move Ukrainian science forward, but actually seem to return it to the nineteenth century. Having become the true Star Chamber of the Ukrainian scientific community, the HQC supports a diseased sectarianism, lack of awareness and fanaticism in expressions of scientific imagination.
As we approach the end, we can draw certain conclusions. The coming to power in Ukraine of a new team should if events develop according to an optimistic scenario lead to a deepening of Ukrainian capitalism and the further expansion of market relations which should have a positive impact not only on socio-economic opportunities for the population. We are talking here, of course, not about the running through the State budget in the style of Tymoshenko’s government, but about the basic growth of employment, the return of capital, the move away from a shadow economy, State non-intervention in business and a reduction in control bodies.
Acute areas of concern in Ukraine remain the rule of law, court reform, guarantees of academic freedom, access to official information and spontaneous creation. At the same time it cannot be excluded that due to the lack of State resources rights and fundamental freedoms will from now on be perceived in Ukraine more in the western manner, that is, not as a gift from the State to its citizens, but as a realm protected from bureaucratic intervention, a creative sphere intended for the spontaneous exercising of the creative beginning. Such an approach to rights and freedoms on the post-Soviet expanse is unusual however it is this that makes freedoms and rights real.
Hrushevsky once called on Ukrainians to learn from Germany (theoretically) and from the United States (more practically). Perhaps for that reason the Constitution of the Ukrainian People’s Republic drawn up in 1918 contained human rights of the first generation according to the American (“negative”) model. Since then a lot of time has passed, however it is precisely now that we have the chance to return to the original understanding of subjective right and freedom.
Just yesterday the Ukrainian authorities treated rights and freedoms in an entirely Soviet fashion, in the style of revolting care and paternalism. Even the Orange President Yushchenko did not much worry about the creative activity of the individual. It is not out of the question either that the new team under the leadership of Yanukovych will find rights and freedoms even less interesting than their predecessors did. However through the enforced move of the State away from ensuring “historical achievements”, civic society has unexpectedly received the chance to rely on its own egoism and responsibility. As Adam Michnik recently pointed out, progress cannot win in everything, but it can also not lose in everything.
On the other hand, although the market economic promotes the development of freedom, it would be naïve to hope for the swift provision by Ukrainian capitalism of an intellectual breakthrough. In the strategic sense such guarantees will undoubtedly occur, however in the tactical dimension the given process could stretch out to cover the life of an entire generation. Ukraine is too under-endowed with effective knowledge and skills. What is particularly regrettable in this context is our formalism, as well as the attempt to level all to the same denominator, the inability to easily recognize and assess a capable person. The Bologna Process in Ukraine is again under fire because the educational workers caste is frightened like the Devil of a cross of public audits. Our “serious” candidates and doctors of science devoid of imagination are like a violin without strings, a plane without fuel.
In their turn, the Ukrainian provisions are in acute need of bookshops and this is not fixed by any Internet. The US President recently said that the priorities for his country remain education and creativity. However if for the USA education and creativity are priorities, then in Ukraine they need the role of anti-epidemic vaccines. The aesthetic idea in politics as initially epitomized by Yushchenko does have prospects. However to master the expanse of spiritual growth means to create and broaden a new mentality. A new generation of Ukraine is from birth post-modern since the post-modern has become the sign of our time. However our post-modern before it becomes an imperative should come out of its marginal state.
The new Ukrainian reality is complex not so much because it cannot be accurately described in words. It is deeply liberal in spirit which demands State leadership in an unusual manner. It is now that Ukrainians require not so much care, as true moral and intellectual support. Azarov’s Cabinet of Ministers plans to cancel budgetary privileges which have reached an incredible level. If the plan succeeds and the sinecure decreases, the public will express a moral stimulus.
Ukraine also needs basic and current laws not overloaded with maximalism and moralizing. It is important to seek and reward talents, good education and the replacing of formalism with a vibrant beginning. All of this enables one to speak of a possible move to a new social paradigm, i.e. about a partially new definition of good and evil in the real of rights, freedoms and human obligations.
It would seem that the evil in our time is bog-like collectivism thanks to which the more intelligent is permanently trailing behind the more foolish. And good is freedom, creativity and personal responsibility within the limits controlled not by bosses, but by humane law. It is clear that the long-term priority is that which should be contained in an updated Constitution of Ukraine.