KHPG Commentary on the current political events in Ukraine (November 2003).

Taking into account the character and the probable consequences of the political declarations, actions and events in Ukraine, which took place lately in the context of the official and social-political initiatives, the Kharkov group for human rights protection (KhG) considers necessary to comment the current political situation in the country.

The KhG reckons that the campaign of the intensive political support of the constitutional reform has been the most important recent political action of the Ukrainian state power. Regarding the reform and separate forms and methods, which are used by the governmental structures of Ukraine for the popularization of the reform, the KhG wants to declare the following.

The constitutional reform, in its present form, does not correspond with the real interests of the Ukrainian people either from the viewpoint of the present time or the abstract perspectives of state politics. The reform is inconsequent from the angle of the organizational methods, insincere from the angle of moral and political substance, thoughtless from the angle the normative-legal qualities and not predictable from the angle of the potential social and political consequences.

In fact, the attempts of the power to break the Constitution of Ukraine began in 2000, when the all-Ukrainian referendum “after public initiative” was organized. Then, as everybody knows, the reform was directed at the abrupt and rough strengthening of the authoritarian principles in the state government and the consolidation of the political system of the country, which, by the way, had been already too centralized.

This attempt appeared to be politically shortsighted, legally raw and morally adventurous. So, it is not surprising that the assessment of this attempt by European political structures and experts was extremely negative, and the power could not convince the Ukrainian population of the advisability of the proposed changes.

Thus, the referendum of 2000 was directed at the illegitimate strengthening of the Presidential branch in the country, it envisaged the contraction of the constitutional principles and democratic institutes, it violated the guarantees of social stability and was aimed at the destruction of the traditional structures of Ukrainian parliamentarism. The conduction of the referendum was accompanied with the mass application of administrative coercion, intimidation of people, neglect of the political, and sometimes also personal, rights and freedoms of citizens.

Therefore, the parliamentary failure of the referendum-2000 was a positive democratic phenomenon, which should become a serious political warning for the power. At the same time, this failure proved that any aggressive authoritarian ambitions are unacceptable in Ukraine.

However, the process of extermination of the political monopolism in Ukraine is very difficult and slow, and the time is inexorable. Soon after the failure the institutes of state power noticed the lack of public support and other symptoms of the degradation of their moral and political image. The rate of the discredit of the inconsequent and insincere state politics in Ukraine was more rapid than the authorities could imagine.

The criticism of the activities of the power by the political opposition was very acute, and the social-economic and financial situation in the country did not improve essentially. Mass media irritated the authorities with the publications about their errors, so, earlier or later, the officials resorted to rudeness, violent actions and the attempts of the open political engagement of law-enforcing organs.

The necessity of real political reform became obvious, the reform directed at the essential rotation in the political and economic elites of the country, or, maybe, even at the replacement of the government. The energetic crisis and the menace of the total financial-economic collapse of the country resulted in the unpopular stuff surgery and the financial readjustment in the sphere, which had been inviolable earlier.

As a result, Yu. Timoshenko and V. Yushchenko, who had been invited to the government as “political rescuers”, were dismissed from their posts. The situation also deteriorated because of the mass corruption and bureaucracy at all vertical and horizontal lines of the power. This deterioration became especially obvious during the “cassette scandal”.

Somehow or other, the truth about the murder of journalist G. Gongadze, as well as the contradictory facts and evidences connected with this crime, were concealed from public. This fact symbolized the impunity of the power and, according to the rules of political grotesque, became the stimulus for open administrative arbitrariness both in the center and in province.

The dismissals of prime-ministers and general prosecutors became usual in Ukraine and, finally, the people stopped to take these dismissals seriously. The separation of the Parliament to the “constructive” majority and “hostile” opposition evidenced not only about the moral perturbation in the souls of national leaders, but also about the total crisis of the political management in the country. Moral pillars began to swing.

 At last, the officials understood that it was impossible to break directly the constitutional mechanisms of democracy including the principle of commutation of the basic institutes and the election principle. Just then, we believe, the government acknowledged the idea of the referendum to be inefficient, so it was replaced with the idea of the parliamentary constitutional reform.

At that time the political power felt itself somewhat injured, but still administratively strong, so the constitutional innovations increased the authority of the President again. The new model of the constitutional redistribution of the top competences should be more centralized than the power structure of 1996, but the factual widening of the Presidential authority was masked with the representation of regions, two-chamber structure of Parliament and democratization.

However, two German students published in the Internet and in human rights protecting press the legal analysis of the legal ruses, and this analysis debunked and ruined the juridical casuistry of the Ukrainian academicians of law. At the same time, one should recognize that President’s version of the changes to the Basic Law was intended for more politically considered and procedurally careful type of the conservation of the top political elite, in comparison with the previous initiatives, in particular referendum-2000.

In order to impart the likeness to legitimacy to the constitutional reform, public meetings and discussions were coercively organized, as well as the collection of the propositions of the population in trains and other public conveyances. Besides, we also want to mention the theoretical consecration of the two-chamber system and factual restriction of the principle of independence of court power branch on the scientific level.

Yet, neither the reports from the public meetings nor the support of the morally raped science of law could save the constitutional idea, which was effectively represented, but was tottering in essence. In spite of its spectacular image, the campaign of the scientific support became another failure of the national doctors of law in the opinion of the Ukrainian society, Ukrainian diaspora and Eastern experts in law. Finally, even the President himself acknowledged that this idea was unsuccessful and recalled his draft from the Constitutional Court.

The hopeless initiative was   buried by its authors, and another, absolutely new, idea of “Ukrainian oprichnina” was entered to the agenda. Just as Ivan IV the Terrible, being “aggrieved” with the lack of political understanding, resorted to the pretended self-expulsion, Leonid Kuchma broke off his constitutional “conditions”.

The internal logic of this political trick is evident and consists, in our opinion, in the recognition by state officials of new political and economic realities: the summer shortage of grain and the forced devaluation of hryvna. Since the presidential election will be conducted rather soon, and the brutality of the political pressure on the opposition deprives the power of the hopes for pardon, the third model of the way out from the dead-end appeared almost automatically.

In other words, the top authorities realized that the opposition might win at the future election, so they decided to transform the constitutional post of the President of Ukraine to the political and juridical fiction. So, if they would have to cede the post to the opposition, they would try before to turn this post into nothing.

So, if the first versions of the constitutional reforms were grounded on the wish of the top officials to increase and prolong their political influence, then the last model of the Ukrainian political reform appeared to be just another attempt to save the sinecures by means of degradation of the subjects of competence of the strongest political institute of the country. We mean, naturally, the competence of the President of Ukraine, the competence that should be used for the conduction of the radical and efficient changes.

At the same time, there were some exceptions, which confirmed the rule. We mean the constitutional request of 53 MPs about the official interpretation by the Constitutional Court of part 3, Article 103 of the Ukrainian Constitution, in which the election of Kuchma for the third term is debated on the top legal level. The Ukrainian science, which is already intimidated by previous initiatives, has been invited again for the legalization of this juridical absurd. The scientists of the Academy of Law managed to repulse the first attempt of justification of this legal nonsense. Yet, the KhG knows that the Academy gave up on the second stage of the “competition”.

To the credit of Leonid Kuchma it should be said that he did not endorse this initiative. Yet, the political claqueurs are irrepressible. It is difficult to predict, what decision the Constitutional Court will make.  In 2000 the Constitutional Court demonstrated the instinct of self-preservation, but since then the composition of the Court has partly changed, and the judges got some additional stimuli in their work. It seems that this time the judges would have to take some decision.

However, the prognosis shows that if the Constitutional Court would support the idea of the election of the President for the third term, and the Academy of Law would endorse the Court legally, then, some time later, the opposition would have to disband both the Constitutional Court and the Academy of Law.

Yet, today the question on the reform is much more serious, since the matter concerns the radical change of the Ukrainian constitutional system as a whole. At that it is unimportant whether this will happen because of the political motives or because of the pathological fear of the top authorities before the opposition. Even a slight anxiety of the government about the opportunity of passing the power to the “bad hands” can result in the political uncontrollability and the administrative destruction of the entire society.

It is obvious that, without a competent President, Ukraine would be diplomatically helpless both before her Western and Eastern neighbors. Ukraine has no stable parliamentary traditions, so she can get to the situation, when not a single political decision would be taken because of the inconsequence of the parliamentary debates. Thus, in order to give no real authorities to their successors, the top officials risk with the political balance in the country.

Ukraine has not passed through a “velvety” revolution yet, and the political disturbances, which took place in the “Ukrainian House” under the direction of V. Medvedchuk, did not resemble the “frank denunciation of lie and balancing the accounts of the previous work” (D. Merezhkovski”).

Yet, in spite of a number of political falsifications and juridical fictions that occurred during the years of independence, Ukraine preserved the ability to reform and develop without blood and victims. For more than 10 years we managed to adhere to the evolutional strategy of development.

For example, the Ukrainian people are realizing more and more the real scope of the famine of 1932-33. Positive changes can be also observed in the moral and political assessment of the national liberation movement in Ukraine, events of the Ukrainian history during and after the WW2 by the population of the Eastern Ukraine. Yet, all these mental and humanistic achievements may be lost soon, if the power would continue the irresponsible detriment of the principles of national constitutionalism.

Now, in order to prevent the access of the opposition to the power, the authorities began to block even traditional political and personal rights. Some strangers in the uniform of special services use to restrict the freedom of MPs. At the same time, legal demands of the MPs are regularly ignored by the local militia.

According to the political orders from the top, representatives of state power, MPs, are divided to “correct” and “incorrect” ones. The cases are frequent, where the Ukrainian constitutional and administrative right stops to function as a juridical regulator. Not only MPs, rectors of higher education establishments and businessmen are divided after the political principle, but the society as a whole.

The policy of censorship and informal use of “temniks” are practiced in mass media and at TV. The main TV channels are silent not only about the political actions of the opposition, but also about the actions and critical speeches of the ombudsperson.

On this background the political games (connected with the constitutional reform) for preserving the economic and political influence, seem to be not only extremely immoral, but also dangerous for the nation. We reckon that the ruling circles are ready to destabilize the country only because some persons do not want to lose their influence and privileges. With this aim the authorities artificially organized recently the “public forum” in Kharkov. By their intention, this gathering had to become the evidence of the nation-wide support of the idea of reshaping the Constitution, the auxiliary way of legitimating the anti-constitutional shady activities.

It is noteworthy that the composition of the “public forum” was appointed by power structures beforehand, and the participants were selected among the persons, who were directly dependent of the power because of their posts or other reasons. The adherents of the reform were recruited after the principle of belonging to the “bureaucratic class” (M. Weber). At that, it was unimportant whether the speakers knew the essence of the matter. The date of the forum and the list of the participants were not published beforehand. As far as we know, the speeches of the participants were pre-arranged and predictable.

The Ukrainian population is not informed about new versions of the constitutional changes and amendments, so all information is got from the expressive speeches of S. Gavrish, the mouthpiece of the constitutional reform. His speeches are very florid, but the ideas presented by him are extremely politically and legally flippant.

Taking into account all above-mentioned facts, the KhG wants to express the moral and political warning to the power. Ukraine is a young democratic country with very contradictory political history. The political development of Ukraine in the 20^th century was, as everybody knows, tragic. The country survived several revolutions, the civil war, national liberation movement, series of the constitutional epochs and political regimes. The achievements of the Central Rada were “corrected” by Hetman regime, and the government of P. Skoropaski – by the Directory. After this Bolsheviks conducted the mass repressions, the echo of which is still heard in the Transcarpathian regions. According to T. Gunchak, the proportion of the Ukrainians, who perished in the 20^th century, is the greatest in Europe, except Poland.

So, the relative political stability is an accidental and fragile gift of Providence, which is possessed by two, or maybe three, generations of Ukrainians. And this stability is now undermined with the fear, short-sightedness, self-conceit and egotism of the power.

On the “first wave” (S. Gantingtone) of the post-war European democratization, Ukraine more or less accepted and adapted to her conditions the values of the world liberal-democratic constitutionalism. Although the Constitution of 1996 was adopted on the wave of civil enthusiasm and appeared to be rather naive and sentimental, its humanistic and legal resources are far from exhaustion yet.

Certainly, our Basic Law must be improved. In particular, the President should be not only a politically competent person, but also a person legally responsible for the actions of the government headed by him. The quotas of voting at the impeachment procedure should be decreased, and the social-economic rights should be corrected towards the real guarantees, etc.

Yet, the conception of the constitutional reform, which is proposed today by the operating power (election of the President by Parliament, essential narrowing of President’s authorities concerning the government, etc.), does not improve, but deteriorates the Basic Law. This conception restricts the political controllability of the country, “infects” the executive branch with the parliamentary dissensions. The reform is equally insincere from the moral-political viewpoint, since, on the background of the declarations about democratization, it decreases twice the possibility of free expression of citizens’ will.

The draft of the constitutional changes not only decreases the amount of the election rights of the Ukrainian citizens, but also contradicts the principle of direct election, which is stipulated by Article 71, Section III of the Constitution of Ukraine. Yet, the provisions of this section serve as the juridical guarantee against the usurpation of citizens’ right to determine and change the constitutional order, these provisions directly protect the inviolability of state sovereignty.

The fact that the Constitutional Court of Ukraine ignores the anti-constitutionality of the suggested reform is the most dangerous moment from the political and legal points of view. In fact, the Court gave its blessing to the power. Thus, the Constitutional Court deliberately disregarded the demands of Articles 71 and 157 of the Constitution; this fact proves that the level of the political hypocrisy in our country reached the critical limit again.

The further movement in this direction will provoke the uncontrolled political processes in Ukraine. Just such situations resulted in “velvety” revolutions in Eastern and Western Europe. If something similar would happen in Ukraine, then the power would not have either time or energy to swagger about its wisdom and achievements. Some time ago W. Jaruzelski introduced the state of emergency in Poland in order to save his clique and the communist regime as a whole. Now such attempt is made in Georgia. The Ukrainian power wants to conduct the constitutional reform, but the goals are similar. Everybody knows, what was the result of the “rescue operation” of Jaruzelski: the ring-buoy appeared to be leaden, so the ship went down even faster. Yet, who now recalls W. Jaruzelski?