Rule of Law: No Change
’When _I_ use a word,’ Humpty Dumpty said in rather a scornful tone, ’it means just what I choose it to mean -- neither more nor less.’
’The question is,’ said Alice, ’whether you CAN make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ’which is to be master - - that’s all.’
In his article: “Human Rights – Change of Paradigm?”, V. Rechytsky writes of “silhouettes of new approaches”. In his words, “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”. Unlike Humpty Dumpty, I have problems tracking down certain words, like “post-modern”, for example. What is particularly disturbing is in this new style which the author describes is the large number of words which have suddenly become just as elusive – like democracy, freedom and rule of law.
I begin these comments, and will be constantly returning, to the rule of law since without this the noblest declarations of democratic commitment are words alone. It would be impossible not to agree with V. Rechytsky’s damning criticism of the constitutional amendments of December 2004. Even before the Verkhovna Rada passed the amendments to its Regulations enabling the creation of a new coalition and government, the Head of the Board of the Centre for Political and Legal Reform, Ihor Koliushko pointed out that the demands on forming a coalition were unprecedented in Europe however he stressed the need to change them “via amendments to the Constitution, not by creating legislation in breach of it” (http://khpg.org.ua/en/index.php?id=1267783592l .
As reported – heatedly and repeatedly – on 9 March the Verkhovna Rada [VR], through a simple majority, passed and the President and Guarantor of the Constitution signed into law Amendments to the VR Regulations. These amendments unequivocally violated Article 83 of the Constitution and ignored the Constitutional Court Judgment from 17 September 2008 no. 16/2008. In the latter, the Constitutional Court had equally unequivocally confirmed that coalitions are only formed by factions.
The new Constitutional Court Judgment of 6 April came a month after the adoption of these amendments and the resulting formation of a new government. It was a month full of entirely open articles in the press about the “necessary” and “predictable” new judgment from the Constitutional Court [CCU], with the main point of discussion being about what the Court could think up to justify its change in position. According to this Judgment, individual National Deputies have the right to take part in the formation of a coalition of deputy factions. Whether the word “justify” is in any way appropriate is an open question, however the explanation was that the new, diametrically opposite, judgment did not cancel the Judgment from 17 September 2008, it was simply that the latter had not taken into account the Law on the Verkhovna Rada Regulations. Well obviously it couldn’t take something that hadn’t yet been passed into consideration. However those Regulations were also preceded by the adoption of Article 83 of the Constitution as well as by the CCU Judgment of 17 September 2008, which establish entirely different rules. It’s rather like if thugs broke into your flat, then changed the ownership papers, turned to the court and the judge kindly found that they had the property rights, not you. After all the National Deputies knew that they were voting for amendments to the Regulations which breached the Constitution which the Guarantor of the Constitution then promptly signed into law.
We are not, admittedly, asked for any quantum leaps of legal understanding. The Head of the Constitutional Court himself gave a press conference where he preferred another form of language, free of dry legalese.
“Mr Stryzhak also expressed the hope that the judgment would bring benefit to society since the Constitutional Court had taken its decision specifically on the basis of such moral-social and legal positions. “The Constitutional Court of Ukraine did not examine this case as a dispute, as a constitutional-legal conflict, but was guided by the real processes of life which cannot always be read in books or in laws”.
V. Rechytsky, while not disputing the infringement, writes: “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.”
There are situations where life or commonsense simply preclude any quibbles over norms of legislation. Rephrasing the words of one famous US Judge, protection of freedom of speech does not give you the right to shout about a non-existent fire in a crowded theatre, and the lack of a storm warning does not justify sending children on a potentially dangerous excursion when ominous clouds can be seen.
Such situations very seldom elicit any controversy which can in no way be said of the present events which is why clarification is vital. After all, the prerequisite for any law should be clear terminology and foreseeability. We have two entirely opposite Constitutional Court Judgments, passed by the same judges regarding the interpretation of the same constitutional norm. Nor are there any legally established definitions to enable us to predict what will be understood by the “real processes of life” or “commonsense”. In fact, even if parliament manages to hastily pass through such a law and the Guarantor of the Constitution signs it, it will remain downright disturbing that a judge of the highest court of the land, whose judgments are not subject to appeal, should be governed by something that “cannot be read in laws”. What exactly were they guided by when adopting the judgment from 17 September? And who is to decide when the “real processes of life” change?
I can agree with V. Rechytsky that “only those laws are inviolable which embody human reason”. However those laws which do not must be changed not violated.
It would be hard to dispute the general assessment which Mr Rechytsky gives of the many ills in the economy, system of health and education, as well, of course, as with the judiciary. His proposed method of treatment does, however, arouse considerable doubt, for example, here: “In fact positive socio-economic rights should be only for those in difficulties not of their own making”. Indeed the present system in Ukraine creates an unmanageable burden, while generating corruption and violations of human rights. It would be foolish to deny the need for radical and hard-hitting reform. However I am not certain that it is so very easy to determine which difficulties are self-inflicted, which are not, and why it is not possible to gradually aim for a system of social protection similar to that in, for example, the United Kingdom.
I am unable to share the author’s optimism regarding the activities of the new regime. He is, of course, writing about fairly philosophical concepts. However one can discuss till the cows come home whether capitalism generally promotes the development of the individual and growth of prosperity, and what needs to be done so that universities provide high-quality and comprehensive education. It remains simply impossible not to notice what is already obstructing all these things.
Human rights sites and media outlets are already full of examples. Some issues, like the worsening situation with freedom of speech, the sharp reduction in the Ministry of Internal Affairs department which had been monitoring human rights in the police force, as well as the effective rejection of independent external assessment [ZNO] as the determining factor for gaining access to higher education have already aroused concern both in Ukraine and abroad. The author may well have grounds for his assertion that “The Bologna Process in Ukraine is again under fire because the educational workers’ caste is frightened like the Devil before the Cross of public audits”. Nonetheless, the most immediate threat to the process can be seen in the determined efforts of two ministers of the new government to place independent external assessment in doubt, thus jeopardizing any attempts to ensure equal access to higher education.
The author’s upbeat view of the new regime’s apparent intention to reject excessive control over economic processes is also baffling. We need only recall the recent accusations from the television channel TVi of pressure from the Security Service [SBU] after the latter, supposedly “by mistake”, as they said when publicly challenged, asked the National Television and Radio Broadcasting Council to carry out a check of the group of companies “Poverkhnost”. In view of the very considerable media interests held by the Head of the SBU and his wife, such “mistakes” would be a cause of concern in any democracy.
One can certainly share the author’s stress on the importance of the individual however it is difficult not to feel serious reservations over some of his conclusions, such as “State leadership in an unusual manner”. At the end of the day, all of us need “real moral and intellectual support”, however the demands to the authorities are in fact much more modest. They should fully respect the division of power, interfere in people’s lives only to the extent that this is necessary in a democratic society, and unfailingly observe both the law, and human rights and civil liberties.
Instead of this, the new government was created through a violation of the Constitution, and its legitimacy – that is, the supposed lack of any violation – was confirmed by a new judgment of the same Constitutional Court on the same issue in conditions which forced many Ukrainians and foreign observers to publicly express dates as to the objectivity and independence of the CCU.
And if that lesson did not give the public a hardly novel, yet nonetheless regrettable message regarding the total incompatibility of the words about the rule of law with their substance, then the above mentioned encroachments and many others were not long in coming.
For all that I share the author’s respect for the individual it is difficult to escape the feeling that there is some kind of misunderstanding. We read:
“And if the deputy is really free, than no factional or coalitional discipline can and should be an absolute”
Sorry, but an absolute must be the deputy’s responsibility to the voters. This does not at all mean that they should ever have to act against their conscience or try to please the voters on all issues. They do however hold electoral office and have no right to disregard the electoral will of the people, particularly of that part of the population who voted for his or her faction. Citizens cannot vote for specific candidates, but solely for political parties or blocs and it is only those factions who answer for actions which anger their electorate.
“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”.
It is interesting to see what the Parliamentary Assembly of the Council of Europe had to say on this issue. It does indeed consider that “imperative mandate” is unacceptable, however goes on to say:
“The Assembly believes that a consistent political programme, responsible and committed party membership and scrupulous screening of parties’ candidates are more effective tools for encouraging party and faction discipline”. (PACE Resolution 1549 (2007)
What is thus at issue is not the need for discipline and responsibility but a question of what are acceptable methods. Deputies should of course vote as their conscience dictates. If suddenly they entirely rethink their political convictions, let them leave the faction or simply vote as they see fit. If the coalition as a result does not have enough votes, it will need to create another coalition or fall, and new elections will be needed.
We are dealing with something else here, with the effective carte blanche for individual deputies to do what they feel like, not taking into account the will of those who voted not for them, but for their party. Factions can obviously also outrage their electorate through their choice of coalition partners. This was what the Socialist Party did in 2006 and lost all seats in parliament at the next elections. An individual deputy can only be deemed accountable to his/her own conscience or God. That may be fine in an ideal world however in ours we need mechanisms to safeguard the voter’s right to real influence on State governance via the ballot box. With its Judgment from 6 April, the Constitutional Court left citizens a pitiful imitation of democracy. They can go and vote, but why bother? They have no say over the candidate lists of their preferred party and they do not vote for individual deputies, yet these individual deputies are now allowed to call the shots and effectively negate the balance of party support at the elections.
There can be no doubt that a review is urgently needed of the constitutional changes of 2004 as well as of electoral legislation. However any action that undermines faith in the independence of the court and in the regime’s commitment to the rule of law can only stunt the country’s real development. You can’t build a law-based democracy on disregard for the Constitution, and it is senseless to assume that people who have understood how easy it is to change the goalposts will then choose to play by the rules.