On the political situation in Ukraine

The President’s Decree “On the early termination of the powers of the Verkhovna Rada of Ukraine” No. 264/2007 was like taking the lid of a pot of soup. Sooner or later the lid would have popped off by itself. The conflict between different political forces, as well as between the political elite as a whole and society is reaching a culmination point.

The boiling is continuing, and has spilled onto the level of whether the Decree is constitutional and consequently whether or not there will be early elections. The discussion on this issue is a variation on the old debate as to which takes priority: natural or positive law. Even Ukrainian lawyers with a reputation for intellectual honesty whose views in the past concurred are today divided. One group believes that the Decree runs counter to the Constitution, while the other is adamant that it is in full adherence, with both sides presenting serious arguments. In fact, I consider this issue to be secondary, in that its answer will not resolve anything and will not change what I see as the main foundation of Ukrainian politics. This latter lies in the fact that no Ukrainian political force bases its actions on the law; quite on the contrary, all of them consistently abuse the law. This abuse has already reached epidemic proportions and is like an almost incurable illness.

Ukrainian politicians consider themselves entitled to carry out any politically expedient actions regardless of violations of the Constitution, laws and the principles of the rule of law. For example, the former Speaker of Parliament Volodymyr Lytvyn deliberately avoided swearing in new Constitutional Court Judges, explaining this as being an attempt to ensure “order” and “stability” in the country.  The former Head of the Supreme Court Vasyl Malyarenko went on leave (for almost six months) for the period of the parliamentary electoral campaign. This was formally connected with his standing for office as one of the first five on the candidate list of Lytvyn’s political bloc. In so doing, the former Head of the Supreme Court not only violated special legislation regarding the judiciary and political parties, prohibiting judges from any political activity, but also made his (mandatory) official appearance at the swearing in of the Constitutional Court judges impossible.

We can conclude that parliament during that period from October 2005 to April 2006 was trying to assume for itself the role of some kind of “main power” in the State. It not only failed to appoint the specified number of judges according to its quota, but also prevented the judges already appointed from commencing their duties.

However severe this may sound, the actions of the Ukrainian parliament in this situation must be qualified as a dangerous encroachment on the principle of constitutional legality, and the political strategies used by former Speaker Lytvyn and former Head of the Supreme Court Malyarenko as politically motivated and a direct abuse of their official positions. The insincerity, dishonesty and reluctance shown by Ukrainian politicians to call things by their own name, their disregard for procedure, lack of respect for the court and failure to adhere to its rulings, the attempts through any means to beat their political opponents have all contributed to the political crisis we see today. 

Another example of the same ilk is provided by the participation in the electoral campaign of the Authorised Human Rights Representative of the Verkhovna Rada (the Human Rights Ombudsperson), Nina Karpachova. The prohibition in law on holding representative office means that the Human Rights Ombudsperson has no legal right to carry out any activities aimed at taking office in the direct future.

After all, participation in an election campaign as a candidate for State Deputy is a nationwide demonstration of political views and clear party preferences. We should also consider the fact that Nina Karpachova effectively occupied the second place in the candidate list, after the leader of the party. All of this indicates that the image, authority and force of the office of Ukrainian Human Rights Ombudsperson were consciously used to advance the interests of a specific political force. In addition, if the aim indicated in the law is manifestly unlawful, so too are any specific and deliberate steps towards achieving this. Otherwise, we would have to accept an effective carte blanche for overt speculation on legislative norms, for abuse of formal law which is obvious to the public, and for disregard for legislative guarantees for the impartiality of the Ombudsperson.

Unfortunately Nina Karpachova resorted to open, if not cynical, abuse of the law during the parliamentary election campaign. Later, having been elected to the Verkhovna Rada, she did not resign of her own will from the post of Human Rights Ombudsperson, this violating the provisions of the law prohibiting the combining of this office with a Deputy’s work.

One could go on and on citing examples of abuse of the law. Such abuse manifests itself not only in actions, but also in the failure to act.  For example, the President was quite simply obliged to approach the Constitutional Court with regard to the conformity with the Constitution of the procedure for voting for changes to the Constitution as part of a “package vote”, together with changes to ordinary laws. However political deals proved more important for him than his duties as Guarantor of the Constitution and human rights.

Another flagrant example of the law being abused was seen in the formation of the ruling coalition after the 2006 parliamentary elections. Playing on the shortcomings in the amended and badly formulated norms to the Constitution regarding the formation of a coalition, they tried to increase it to 300 votes, although formally the renegade deputies would have remained in the ranks of their factions.

Ukrainian politicians have become entangled, like flies in a spider web, in their own relations, grievances, betrayals and lies. Suffice to mention simply the fact that the Socialist Party formed a ruling coalition with the Party of the Regions and Communists, or the vote by the entire BYuT faction [Yulia Tymoshenko’s bloc] for the Law on the Cabinet of Ministers of Ukraine which flagrantly violates the Constitution.  And they will become ever more entangled as a result of the changes in how the power structure is organized following the amendments to the Constitution. Ever since December 2004, the Kharkiv Human Rights Protection Group has repeatedly and publicly warned of the risks inherent in this monstrosity. It is galling to observe today how all our predictions are coming true. Competition has been created between legitimate and real centres of power – the President and Prime Minister – within one executive branch of power with this leading to the country becoming ungovernable. The constitutional amendments have effectively jeopardized state sovereignty and the country’s independence altogether.  It has created a rift in the unity of foreign and domestic policy, introduced principles of the worst political collectivism, transforming Members of Parliament into voting machines, totally dependent on the will of their leaders, or one could even call them owners of their factions.

The “political reform” has significantly increased the influence of powerful financial and industrial groups on parliament while at the same time decreasing the access of the public to the authorities.

There is also another aspect of the “political reform”. It is nothing more than a conspiracy of the rich against the poor. John Rawls’ principle of “inequality of benefit to everyone” does not work in Ukraine, and the constitutional changes are clearly hampering its implementation. And what kind of democracy and rule of law in Ukraine can we seriously speak of when an unemployed former parliamentarian has gained the right to receive on a monthly basis approximately four times the salary of a current member of the National Academy of Sciences of Ukraine, or approximately 6 times the salary of a professor in a Ukrainian university (Fourth, i.e. highest, category)?  One current Deputy costs the Ukrainian State as much as eight members of the Academy, or 12 professors, or 26 surgeons, or 40 teachers in secondary schools. The pension of a former State Deputy wavers between 80-90% of that which s/he received when in office.  The wage differential for all those working in state-funding institutions is equivalent to 1:40. This data is concealed in documents on limited access not available to the public. For comparison, in the Western Europe the ratio is 1:4, in the USA – 1:5 and these figures are open and stipulated by law.

The disastrous consequences of the “political reform” demand that it be reassessed. Without this, new elections will change nothing since the conflicts lie at a systemic level. It needs to be understood that the amendments made to the Constitution create objective reasons for political confrontation in society and the principles of Ukrainian politics enshrined in the Constitution need therefore to be reviewed.

The “political reform” has also resulted in a lost of trust in the Constitutional Court. If before the President and parliament had the right to only appoint their six judges each for a period of nine years, according to the amended Constitution, they can also dismiss previously appointed judges (Article 85 § 1.26 and Article 106 § 1.22 of the Constitution). Combined with the largest salary among civil servants (Constitutional Court Judges receive 60,000 UH a month), this leads to direct dependence of these judges on those who appointed them. And brutal as this may be, it means corruption of the Constitutional Court.  Not having had time to come to after the shame of the judgment regarding a possible third term in office for President Kuchma, the Constitutional Court was paralyzed by the actions of parliament. Since being reinstated, it has not been able to pass a single judgment because the judges are equally divided between the political forces which have a say over their possible dismissal. Whatever judgment the Constitutional Court hands down with regard to the constitutionality of Decree No. 264/2007, politicians will refuse to adhere to it. This does not however in any way justify the outrageous pressure on judges whom representatives of the opposition have not been allowing to take their work places. Such methods are fatal for the authority of the justice system.

It is thus, most regrettably, difficult to see a legal solution to the political crisis. Yet without returning to the law, it is impossible to overcome the crisis. Early parliamentary elections without a change to the Constitution and to electoral law will change nothing. A way out of the political crisis is thus possible only via political agreement between the President and parliament.

In my opinion, the parties in conflict need to come via negotiations to a political accord like the constitutional agreed of 1995 which would set out a way to overcome the crisis and an action plan. Before negotiations the parties must renounce their previous steps which led to the dead end: parliament must revoke the Law on the Cabinet of Ministers and changes to the format of the coalition, while the President must cancel Decree No. 264/2007.  The parties should commit themselves to refrain from actions which change the balance of power and begin negotiations. In my opinion, these should result in an agreement which would set out the following action plan.

1. To revoke the Law on amendments to the Constitution from 8 December 2004 as a document which was passed in violation of Part XIII of the Constitution;
2. To pass the Law “On a Constitutional Assembly” which envisages that members of the Assembly do not have the right to stand for office as deputies of any levels or to hold leading positions in the government for 10 years after the passing of the Constitution;
3. To create a Constitutional Assembly which will begin preparing a draft new Constitution;
4. Parliament will adopt amendments to the Law on the elections to the Verkhovna Rada which stipulates open party lists and at the same time the possibility of electing deputies according to territorial areas;
5. Parliament will adopt a new law on elections to bodies of local self-government, returning to a majority electoral system;
6. In October 2007 early parliamentary elections will be held according to the new electoral law. The government will be formed in accordance with the Constitution current up till 1 January 2006;
7. In March 2008 early elections will be held for bodies of local self-government and at the same time a referendum will be held on amendments to Parts 1, III and XIII of the Constitution, amended by the Constitutional Assembly;
8. A new Constitution will be passed;
9. In June 2008 Presidential elections will be held with the powers stipulated by the new Constitution;
10. The appointment of a new makeup of the Constitutional Court.

I would mention in concluding that pressure from the President, the Verkhovna Rada and the Cabinet of Ministers on civil servants – judges, prosecutors, employees of other law enforcement agencies, etc, must be viewed by all as the most serious violation of the ethos of the civil service.

PS  After this text was completed, it was reported that deputies from the BYuT and Nasha Ukraina [Our Ukraine] factions had resigned from their posts. If more than 150 Deputies of the Verkhovna Rada resign, the Rada becomes unable to function and there must be early elections. I would however reiterate that nothing will change if we retain the present Constitution.