19.08.2013 | Halya Coynash

Adjustable Goalposts


The process underway in Ukraine of moving all goalposts may lack finesse, but it is certainly comprehensive, with the courts being assigned a very specific role.   Adjust all rules; add your own referee and you’re home and dry.

Two Kyiv Administrative Court rulings on 9 August were disturbingly predictable. 

In one ruling, the Court found that it was legitimate for the current Kyiv City Council to continue to hold sessions and function as normal.  There has been no Mayor for well over a year, and the term of office of the current session of the Council ended in April this year.  

The Administrative Court’s logic was, presumably, that there is no other council with legitimacy, and even if a new council had been elected, there would still be a caretaker council until the new one was sworn in. 

If one assumes adjustable goalposts, then the arguments are not totally devoid of force.  If we are so bold as to look to the Constitution, then the term of office for deputies of a city council is 5 years, and new elections are thus 5 months overdue. The solution is to call new elections, not to use a judicial stamp to extend the Council’s sell-by-date. 

Two attempts were made in parliament this year to call Kyiv Mayoral and council elections.  They were blocked by the ruling Party of the Regions which would almost certainly see dismal returns in the capital. 

There has been plenty of activity of other sorts.  On 30 May 2013 the Constitutional Court once again overturned a previous judgment and now stated that the next regular elections should take place in October 2015.  The Constitutional Court deemed that for greater “stability” and continuity, all regular local elections should be held at the same time. 

This was generally perceived as a carte blanche for delaying the elections as long as possible and ensuring that Yanukovych had a President-friendly Mayor and council in place during the Presidential elections in early 2015.  In theory, this is not the case since the Court’s judgment referred only to regular elections.  In practice, few were deceived.  The Court had made no statement regarding the need for extraordinary elections to bridge the considerable gap, and an EU Delegation to Ukraine spokesperson expressed deep concern over the postponement.  David Sulik, the Delegation’s Press Officer stressed that elections must be held at reasonable intervals.

The District Administrative Court’s August 9 judgment can also not be said to rule out elections earlier than 2015.  However this is again in theory.  No mention has been made of the need to call such elections, though the period conceivably at issue renders the term “caretaker administration” entirely meaningless.

Observers and the opposition have suggested that attempts are presently underway to neutralize a future mayor elected by Kyiv residents by increasing the powers of the head of the Kyiv City State Administration [KCSA] who is appointed by the President.   In May this year the Cabinet of Ministers increased the number of members of staff of KCSA and in that same month a presidential decree gave Popov’s Administration a whole range of additional powers.   Yulia Tyshchenko from the Independent Centre for Political Research sees signs that the President’s Administration and Cabinet of Ministers are trying to usurp power in the capital.  Kyiv’s importance for the Party of the Regions during the 2015 presidential elections, she says, is prompting them to deprive Kyiv residents of their right to have their say.

If the District Administrative Court ruling on the Kyiv local elections was music manly to the ears of the ruling party, another ruling from the same court that day was not necessarily unwelcome to MPs of other political factions.  Judge Arina Lytvynova upheld the refusal by the Verkhovna Rada Office to provide members of the public with copies of income declarations submitted by the Parliamentary Speaker and leaders of all party factions.  The argument was that they contain “confidential” information. 

A legal education is not required to understand that any confidential details can easily be blotted out, leaving information about MPS’ and other public officials’ income and spending required by both the Public Information Act and anti-corruption legislation, A judicial sanction to not provide them on demand makes all such laws, as well as the endless assurances of commitment to abide by them, empty pretence. 

The two rulings of 9 August join a formidable number of rulings in 2013 alone from the Kyiv District Administrative Court, the High Administrative Court and others which have curtailed fundamental democratic rights including freedom of peaceful assembly and electoral rights. 

It is the law that should be foreseeable, not courts providing judicial stamps for what suits those in power. 

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