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Legal commentary on the Presidenti’s Dissolution of the Verkhovna Rada and on the overall political situation in Ukraine

Vsevolod Rechytsky

As we know, on 2 April 2007 President Viktor Yushchenko issued Decree No. 264/2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine”.  The decree both acknowledges and substantially escalates the acute political crisis in the country. It is these circumstances which have prompted the following commentary. It should be stated from the outset that the commentary is based on certain well-known axioms. This includes the principle that liberalism which is not based on the power of the law is worth little, while democracy which is not based on the rule of law is nothing but a prelude to chaos. Political chaos most often ends with the rule of the strong. It ends up with freedom not based on the law being effectively the right of force.  It is essentially from these classical principles that we will attempt to build this commentary.

The President’s Decree (hereafter the Decree) states that:

1)  the situation has emerged where a majority in the Verkhovna Rada are ignoring constitutional requirements on forming coalitions of deputy factions, for example, “instead of isolated cases when individual National Deputies have joined the coalition …  we now have the practice of mass filling of their ranks through individual or group membership”.

2) “the violation of the constitutional provisions regarding the formation of deputy factions distorts the results of people’s declaration of will …. in March 2006”;

3) this formation of the coalition “constitutes disdain of the constitutional electoral rights of citizens of Ukraine”;

4) it also “results in neglecting of constitutional principle of the people’s sovereignty”;

5) in addition, “Such a development of events creates the prerequisites for usurpation of power in Ukraine”;  

6) Finally, all this “also threatens national security, causes destabilization of political situation in the State, and creates potential danger for State’s sovereignty “.

In my opinion, each of the above-mentioned elements of the Decree warrants separate legal assessment. It would therefore be expedient to consider the situation specifically in accordance with most of these theses.

1. The Decree asserts that at present a mass filling of the ranks of the ruling coalition is taking place on the basis of individual or group membership. This means that from the outset we encounter a value judgment from the President as to whether a certain (in my view not mass – V.R.) number of Deputies have begun voting in unison with those who belong to the ruling coalition. With the exception of the move to the coalition of the deputies of Anatoly Kinakh’s group, and earlier – of Oleksandr Moroz’s socialists, what we have here is not so much the physical moving from faction to faction, as much as the change in priorities in voting of certain members of the parliamentary coalition. Since in the last few days, these people were removed from the makeup of the ruling coalition, their link with the coalition remains purely ideological.

If one recalls that paragraph 2 of Article 80 of the Constitution states that “National Deputies of Ukraine are not legally liable for the results of voting or for statements made in Parliament and in its bodies”, the question arises: what is the sense of the “serious violation” mentioned in the Decree?  After all, the coalition’s new sympathizers sit in the same plenary chambers as they sat before. They listen, think, take decisions and vote. All the same as before, only the inner judgments and political attitudes have changed significantly. However does any faction have power over the intellect, moral convictions and spiritual values of its members? Moreover, do even the people of Ukraine have such power over the consciousness of deputies?

At the 2006 parliamentary elections, the people elected very different individuals with all their inevitable inner convictions, moods and judgments. The voting moreover was effectively on the basis of closed candidate lists. That means that the people when voting for deputies had to rely on the maturity of the political force which formed a specific list. In reality the lists were formed by the leaders of the blocs and parties, thus it is they who bear the main responsibility for the illogical behaviour of their chosen candidates. If places on the list were bought for money, then any grievances are in general out of place. The people did not empower political leaders to sell places. If then they did this, then they should bear constitutional liability. In the latter case it would be logical to dissolve not the entire Verkhovna Rada, but only the opposition factions which have become morally corrupted.

However in no electoral system in the world is the choice of people infallible. A normal electoral system can be majority, proportional or mixed, however in any of these cases it must produce a result where errors of the expression of people’s will are isolated, that is, not creating an effect on a mass or systemic scale. Here the Decree states that there has been a mass change in political orientation. However if the sympathies and subsequent voting of deputies change on a mass scale, than this would give grounds for speaking not of political apostasy, but of a faulty manner of forming electoral lists, a legally unacceptable electoral law.

On the other hand, there are no serious grounds for asserting that the people as represented by the majority of voters were really irritated by the transfer of deputies from the opposition to the coalition. The people, in fact, elected National Deputies not directly to the coalition or the opposition, but to parliament – the Verkhovna Rada of Ukraine.  

This means that according to the law, the people cannot influence whether deputies join the coalition or the opposition, and should not be able to. One can also not exclude the possibility that during the period which has elapsed since the last parliamentary elections, the electorate has moved towards new political priorities together with the renegade deputies. At least the President of Ukraine cannot be entirely sure of knowing the present political mood of the people. As relatively recently history demonstrates, leaders can be wildly at variance with the people. Suffice to cite the example of Nicolae Ceaucescu.

If the sympathies of the majority of the population at the first elections were given to one party, and at the second to another (the typical situation in a two-party system), then why could they not change in a shorter period of time?  In March 2006 the people could want one thing, and in April 2007 – something else.

In the final analysis, if the voting of individual deputies from opposition factions together with the coalition is betrayal, then the voting of an entire faction – ByuT [the bloc of Yulia Tymoshenko)  for the Law on the Cabinet of Ministers could be seen as an even greater betrayal.  This after all virtually destroys the political weight of the position of President of Ukraine. And why in that case not consider as betrayal of the electorate the fact that President Yushchenko himself put forward the candidacy of Viktor Yanukovych as Prime Minister? After all, it was to stop the latter coming to power that his electorate stood out on the winter Maidan Nezalezhnosti [Independence Square, in Kyiv].

One way or another, from the legal point of view, it is not possible to prove that the change in the strategy of voting by a whole faction or the change in political tastes of the President with regard to the candidacy of Viktor Yanukovych were a blessing for the people, while the change in the voting strategy of individual deputies was an evil.

2. The position taken in the Decree that ““the violation of the constitutional provisions regarding the formation of deputy factions distorts the results of people’s declaration of will …. in March 2006” is also extremely dubious. It would follow from the Decree’s logic that the transfer of socialists under Oleksandr Moroz’s leadership to the “anti-crisis coalition” in summer 2006 did not distort the will of the voters, but the move of other factions later did.  Such a conclusion has no logic to it, since immediately after the elections the will of the electorate was closer to the will of those deputies it had elected than 9 months later. However we must stress that the Constitution immediately after the elections allows National Deputies to enter as a faction any coalition.

Article 83 § 7 of the Constitution states only that a minimum of 226 deputies organized into factions must decide within the space of one month to join the ruling coalition. It is clear with this that, given a multi-party system as in Ukraine, that the political unity of the coalition can only be relative.

Parties after all join the coalition; they do not dissolve into it. It would therefore seem logical that according to the Constitution and the law, such unity should suffice only for the formation of the Cabinet of Ministers. The Constitution quite simply says nothing more about the future fate of the coalition unity, nor about the unity of the opposition. This means that it does not envisage any duty of either the coalition or the opposition to vote in opposite ways. On the contrary, from Article 80 § 2 of the Constitution it follows that deputies’ votes are on principle an individual matter. This means that they are governed by their own choice, intuition, and not by party (factional) discipline.

We must therefore reach the only conceivable conclusion that the Constitution does not envisage voting in unison either within the bounds of the ruling coalition or within those of the opposition. As far as general standards of party democracy are concerned, it is not the party that should think like the leader, but the leader who must be in harmony with his or her fellow party members. This rule applies to an even larger extent to deputy factions which may, according to Ukrainian law, include non-faction deputies. At the end of the day a moderate dissident in a party or faction demonstrates their tolerance and pluralism, and then the norm. While the opposite, absolute political unity is the clear hallmark of “democratic centralism” of the Soviet type.

3. Another assertion of the Decree which would appear legally unproven is that the “filling” of the ranks of the coalition “on the basis of individual or group membership” ““constitutes disdain of the constitutional electoral rights of citizens of Ukraine”.

The electoral rights of Ukrainian citizens boil down to them either voting for party or bloc lists (the majority system is in force only at elections to village and settlement councils), or themselves getting on such lists.  

There are no serious problems with active electoral law in Ukraine however the situation with passive electoral law is considerably worse.

The constitutional amendments of 8 December 2004 and the Law “On the election of National Deputies of Ukraine” in the edition from 19 January 2006, introduced a proportional system of voting with virtually closed electoral lists. This adversely affected the political rights of Ukrainian citizens, while making it possible to fill the candidate lists of parties and blocs with eccentric oligarchs, guards and chauffeurs of VIPs, as well as stage and television stars. Having enabled the deputy corps to be formed from the business or overtly exotic layers of society, the electoral law automatically stimulated the lack of control and unpredictable behaviour of parliamentary neophytes.

In honesty the “political reform” [as the constitutional amendments are known – translator] of 2004 and the electoral law adopted on its basis have made Ukrainian politics overtly corporative and the Verkhovna Rada itself the epitome of some kind of casino club for the rich. Since the amendments and the electoral law were voted in by the last makeup of the Verkhovna Rada together with the President to be, it is these people who bear responsibility for the systemic failings they contain.  Quite simply, the problems of the present situation in parliament and society have arisen not from deputy renegades, but from the systematic features of the “political reform” and the legislative decisions passed on the basis of these amendments.

As far as the procedure for forming the coalition which the Decree mentions, this does not directly influence the exercising by Ukrainian citizens of their electoral lights. In Ukraine, thank goodness, the imperative mandate is not recognized at parliamentary level. A National Deputy is not a primitive instrument for passing on the mood and preferences of the electorate, but a responsible, independently thinking and politically autonomous individual. Any voter can change his or her preferences and the same applies to any National Deputy. The present pre-election programme is a declaration of intentions and not battle regulations. It can be exercised in very many ways. It is for this reasons that deputies have the right to choice their tactics for parliamentary life.

A healthy faction is not an anthill nor a beehive with roles fixed once and for all. However, experts note that in Ukrainian parliamentary factions the decisions are made by the party elite which comprise at most 3 or 4 people. It is not surprising that the style of work of such totalitarian factions arouses only reluctance and disgust. You can dress up all in members of a Ukrainian parliamentary faction in white sweaters, but it’s much harder to bleach the human mind. At the end of the day, each voter takes a certain risk when voting for this or that person as their representative.

A political marriage, like any other, can at times prove unsuccessful.

In any case, the President cannot and does not need to know who specifically in any given parliamentary faction represents the correct course. After all in a democracy only statistics certify the truth. It is even more difficult to grasp any universal truth among the people. There is a French proverb that “In this world what is most terrible is that each person is in his or her way right”. How, for example, do you assess the behaviour of breakaway deputies in a case where their political preferences diverge with those of the faction leaders, yet are close to those of the wider public?

According to established European practice, a parliamentarian defends the interests not of specific voters, but of the nation as a whole. As Rudyard Kipling wrote in the “Ballad of East and West”: “And thou must harry thy father’s hold for the peace of the Border-line”.  One can cite another example closer to us. If the communists had not followed Stalin, but rather Stalin the communists, the harm for civilization would probably have been less.

4. Nor is the point quite clear in the Decree about how the spontaneous procedure for the formation of a coalition “results in the neglect of the constitutional principle of the people’s sovereignty, enshrined in the second and third paragraphs of Article 5 of the Main Law of Ukraine”. We are talking here of deputies from the opposition joining not a minority, but the majority in the Ukrainian parliament. Furthermore, we don’t know whether Oleksandr Moroz’s faction, by having joined the coalition, have lost their electorate. We similarly do not know whether President Yushchenko lost his electorate after he fairly recently put forward Viktor Yanukovych’s candidacy for the post of Prime Minister. It is likely that he disillusioned some circles of the public while for others he began to appear wise.

In terms of constitutionalism it is customary to believe that an organically formed majority in parliament reflects a majority among the population. This means that the people’s sovereignty exists as the political will of the majority. According to the traditional definition, the people’s sovereignty is the unity, inviolability and rule of the political will of the people. However in practice, the sovereignty of the people is a qualitative state which arises through the emergence of a political majority. A political minority cannot by definition epitomize this sovereignty.

Thus, if the size of the ruling coalition increases in the country, then this leads to a strengthening of those characteristics which are inherent in the concept of the people’s sovereignty. It is quite another matter that a positive quality of the sovereign will of the people is not at all guaranteed. In 1933 the political will of the German people was to elect a monster as leader of their country. The tyrant Fidel Castro has the support of the masses in Cuba, while the terrorist Che Guevara to this day arouses the admiration of the younger generation.

It is no secret that the political will of the Ukrainian people is balanced between two vectors of development leading to signficantly different prospects for the country. It is for this reason that having gained a difficult victory in the Presidential elections, the orange forces should have done everything to gain the support as swiftly as possible of at least a few percent of the blue and white electorate.

However this historic chance was ignored, and seemingly lost. The policy of the orange regime was not caring and humane, and focused on the needs of the average person. For example, the move towards the European values they declared required radical changes in the attitude of the State to education. After all, only an educated person can understand the meaning of freedom, the dignity of the individual and of democracy. Yet Ukrainian provincial schools, just as their teachers, have remained in penury. Not even the network of provincial bookshops, traditional for communist times, was renewed. The law did not work as a universal regulator. Key witnesses were invited to the Prosecutor General via national television channels, and the vote-riggers in the elections could laugh at the weakness of the victors. The appalling, yet logical, consequence of this political atmosphere came with the former Prosecutor General Mykhailo Potebenko, being finally awarded the honour of Yaroslav the Wise.

Economic benefits were mainly channelled into the capital which turned the Khreshchatyk into a national parking area for Mercedes. In the architectural sense, Kyiv, as one expert put it, became the embodiment of the “daydreams of a drunken confectioner”. The spread of salaries in the State sector reached 1:40. And this was while self-confidence contrasted with the extremely modest erudition of the ruling elite. It is not surprising that at the parliamentary elections only the inertia of people’s hopes saved the orange camp.

The excessive consolidation of power (on any basis) can lead to disastrous consequences on a nationwide scale. However it does not represent a threat to the people’s sovereignty.

The expansion of unity in parliament encroaches upon pluralism, polyphony and variety in society and is dangerous for the rights of political minorities and the individual. Political consolidation thus becomes a serious threat to liberalism. However it is not this that the Decree talks of. It is not difficult to guess that the President is worried not about the State or the people’s sovereignty per se, but what shade of colour both sovereignties may come in.

The increase in the parliamentary majority thus leads not to a threat to the State or the people’s sovereignty, but to excessive regulation of the political processes in the country. Hypertrophied unity is a factor less of destabilization, than of stagnation in Ukrainian society. It is precisely against this that the arguments of the Presidential Decree should have been directed. If the intentions of the Guarantor of the Constitution can be in the final analysis considered to be positive, then the purely legal logic of his Decree openly fails to coincide with these intentions. The artificial “inflating” of the parliamentary majority does not threaten to destabilize the country, but to induce a lethargic stupor.

5. The argument of the Decree regarding the “usurpation of power in Ukraine” is also not well-suited to the actual circumstances. The usual understanding of usurpation involves a forced seizure of power. There are at present no grounds for claiming that the transfer of deputies from parliamentary opposition to the side of the majority is the consequence or precondition of force.  One does not yet see any clear signs of coercion. We do not have the right to associate with coercion the financial, business or other temptation organized by the coalition for their opponents.

Therefore the Decree’s legal construct should also be deemed incorrect. The arguments used in the Decree are political and not legal (constitutional). The Decree demonstrates the real concern and anxiety of the President, however from a legal point of view it does not prove the existence of those threats which it speaks of.

6. As the Decree shows, the President also considers that the last events in parliament pose a threat to national security and potentially jeopardize State sovereignty. One can agree, but only in part, with this assertion.  The risk to national security and State sovereignty is not so much due to the hospitality of the coalition which it so generously bestows on its opponents, but due to the general deepening of political problems in the country. It is this that I would like to expand on below.

An analysis of the Decree and of the political situation around it enables us to reach certain conclusions. It is clear that Ukraine is endangered by an excessive concentration of the parliamentary majority however it is still more at risk from the schism of the executive branch into two powerful centres which has resulted from the “political reform”. The constitutional split is in turn organically ending up with “two Ukraines” [Mykola Rybchuk) – East-South and West-Centre which at one time received coverage in Ukrainian publicist writings.

As a result, Ukraine has ended up with the competition, dangerously exacerbated by the “political reform” of two political stands and two visions for the strategic development of Ukraine. Given this situation, the President’s Decree can be seen as merely a characteristic symptom. From outside it all looks as though the President was not so concerned about stability in the country, as worried about the fact that it was being constructed according to a “Regional” model. The historical (geopolitical) grounds for this confrontation are the fact that the centre and West voted Viktor Yushchenko President, and the East and South make Viktor Yanukovych Prime Minister.

Against the background of the political upheavals of recent years the true threat for Ukraine would seem less the coalition’s majority, than the split in State power at the highest level, exacerbated by the “political reform”. It is this split in the executive branch of power that has led to the lack of cohesion between Ukraine’s domestic and foreign political course, confrontation between bodies of local self-government and the State administration in the East and South of the country.

It is no secret that the general retrograde and conservative style of government which representatives of the political forces of the coalition are demonstrating virtually everywhere are a danger to the country. The general atmosphere is oppressed by the archaism of primitive myths which dominate in the system of State education, the superstitious attitude of even educated layers of the population to the idea of European integration and Ukraine’s potential membership of NATO.

It would also be difficult to overestimate the danger implicit in the disregard for the Constitution and laws of the country by the authorities and high-ranking public officials. Sufficient to mention the blocking of the functioning of the Constitutional Court by the former Speaker of Parliament V. Lytvyn, the fact that the Head of the Supreme Court V. Malyarenko and the Human Rights Ombudsperson N. Karpachova took part in the elections, the voting by deputies of the Verkhovna Rada using other deputies’ cards, the judgment of the Constitutional Court in favour of Leonid Kuchma’s standing for office a third time. Unfortunately the President’s Decree has not moved far in form from such practice.

The model of proportional representation for bodies of local self-government appears harmful. The incredible spread of salaries in the State sector is destroying national unity. The situation where a National Deputy receives a salary which is a few dozen times higher than the salary of a highly qualified teacher or surgeon is a greater threat to national unity in Ukraine than any upheavals at the level of parliamentary factions. As some Austrian political scientists have asserted, with the kind of divide in State salaries as that in Ukraine, it is simply impossible to create a political nation.

There is therefore indeed a steadily deepening political crisis in Ukraine. This is first of all the general crisis of confidence of the population towards the authorities. This is also the crisis arising from the primitive level of awareness of the population resulting in large numbers of Ukrainians being afraid of Brussels and NATO. It is the crisis of the economic divide between the rich and the poor, as well as between State higher and lower ranking officials. It is a crisis of constitutionalism and lawfulness, resulting in high-ranking public officials consciously ignoring the requirements of their own law-based system. It is a crisis of moral and ethical qualities of National Deputies and their leaders which resort to mass blackmailing votes.

In the strategic sense, the majority of features of crisis in Ukraine are linked with the fact that it has still not managed to part with the theory and practice of totalitarianism. The instrumental focus in the behaviour of political leaders, their inability to be guided by values and principles, the mass disregard for the Constitution and legislation, untrammelled political ambition – these are all results of a plebeian political  culture and of a long-term shortage of modern knowledge and freedom. On the other hand, as more time passes, the public’s attitude to the Ukrainian political reality becomes more and more critical. For example, people are beginning to understand that the Constitution of Ukraine was damaged in December 2004 purely as the result of the personal ambitions of the highest-ranking politicians.

The systemic failings of the constitutional amendments are presently destroying Ukraine’s political course. The overt primitivism of the electoral system and imperial mandate are making Ukrainian politics unwieldy and its State life a permanent settling of personal accounts. The collapse of the Constitution has made Ukrainian politics at once hypocritical, emotionally distasteful, inhumane and ineffective.  The more rhetoric and slogans are declared by the political elite, the deeper the divide between them and the population. In the final analysis the mutual recriminations and the Decree of 2 April 2007 have made one simple fact clear and transparent: all without exception political parties and branches of State power bear responsibility for the systemic crisis in Ukraine. And the greatest blame lies with those who were and should remain the most sensible and intelligent.

The Decree on the dissolution of parliament will obviously be a hard nut to crack for the Constitutional Court not only because of the purely legal features. It is difficult to analyze also through its moral and ethical basis. From the legal point of view one does not need to provide lengthy proof for stating that the President does not have the right to arbitrarily dissolve parliament. Viktor Yushchenko is not the Tsar’s Governor in the Caucuses who in the times of the Russian Empire usually had discretionary powers. On the other hand the President is right in the sense that the Ukrainian State has hit a dead end, society which has grown indifferent is disintegrating before our eyes, and we must somehow react to this.

In themselves snap elections in a country which is growing and changing rapidly are easy to justify. However the energy of the population at such elections needs to be used to maximum effect. The real problem which the Constitutional Court now faces is that per se the dissolution of parliament and new elections will not enable Ukraine to come out of its systemic crisis. The reasons for the latter lie concealed in the matrix of the “political reform”. While this exists, no Ukrainian parliament or government will be able to escape its destructive influence.

In order therefore to cure the illness, more daring measures are needed. The “political reform” can be put to a nationwide vote or abolished in the Constitutional Court. There is no shortage of legal arguments for this. The Constitution as rewritten by incompetents is indeed illegitimate and is absolutely not a document which we should defend with all our might. Since the responsibility for the reform lies with all branches of power, the President should also dare call new Presidential elections. First, however, the fate of the “political reform” needs to be decided.

As far as the further scenario for the “rebirth” of Ukraine is concerned, than this should be drawn up not by the Constitutional Court, but by a roundtable of the main political forces in Ukraine. Here it is worth listening to the advice which Leonid Kravchuk is ready to give.

One can understand the hopes of the opposition for political revanche, just as for their gloating expectations regarding the future political fate of A. Kinakh and O. Moroz. However political life is ultimately paradoxical. Attempting to beat “Solidarity”, the Polish communists provoked a crisis, hoping that the people would come out onto the streets with Marxist slogans and red flags. Instead Polish workers unexpectedly came out onto the streets under the sign of the Black Madonna.  Such disillusionment could await our opposition members. It is not inconceivable that over the last two years the people have moved on a different road towards understanding political reality which is quite different from the President’s path.

However, under any circumstances, Ukraine’s problem lies not only in the fact that “bad” politicians have seized the initiative from the “good” politicians. What is staggering is that even the “good” politicians are absolutely not concerned about the reputation of their own constitutional judges. And they, after all, form the legal elite of the country. The previous Constitutional Court was discredited in the eyes of the international community due to the judgment regarding a third term in office for Leonid Kuchma. At present it is not clear whether the new Constitutional Court will wish to sacrifice its international reputation in favour of the Guarantor of constitutionalism. It is obvious that Ukraine needs real shock therapy. However the Decree offers the Ukrainian public a roughly sharpened scalpel.

In any case Ukrainian voters should think seriously whether it is worth once again giving their votes to those who have awarded themselves salaries dozens of times higher than those of their voters, and also to those who for the sake of unlimited ambition damaged the national Main Law. It is indeed time for Ukraine’s rebirth. However this can begin from something understandable to all and simple. This could be, for example, a review of the procedural elements of the “political reform”. This may seem from the outside insignificant however it could open the door for us into the fresh air.

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