Ukraine without a parliament

Nearly every day for the last two months, Ukrainian officials have been sacrificing the letter of the law for the sake of its spirit. Many call the recent political events nothing but a constitutional absurdity. How this lengthy experiment will end will not become clear either tomorrow or on Sept. 30 because the results of today’s “agreements of the three” resemble a time-bomb in many ways.

What long-term risks may stem from the unprecedented departure from the legal field and “manual control” of the government system? How can they be prevented? Answers to these questions were sought by the participants of an open session of Ukrainian Forum called “Is Ukrainian Parliamentarism at Risk?” which was attended by well-known Ukrainian politicians, retired judges of the Constitutional and Supreme Courts, former heads of the Central Elections Commission, and legal experts.

Convening the session, Volodymyr Semynozhenko, the head of the Ukrainian Forum, noted that some politicians today are acting according to the principle, “No state institute, no problem.” The Constitutional Court and Office of the Prosecutor-General have already become victims of the political conflict; now it is the Verkhovna Rada’s turn. The proposed mechanism for halting its activity through the “self-dissolution” of 151 deputies violates the fundamental principle of state building — the continuity of the people’s representation and state power, especially the functioning of its legislative branch. In this case, isn’t the price of the achieved compromise too high?

This is not a rhetorical question. In the domestic political situation, when blackmail is practically the principal means of achieving goals, any party or bloc that acquires 150 mandates during the elections but does not have a majority in parliament may provoke the dissolution of the Verkhovna Rada. In fact, the country has been without a parliament for nearly half a year as a result of the achieved agreements.

What about next year’s state budget, the draft of which the government must present in the Verkhovna Rada by Sept. 15? What about solving other burning questions that need legislative support? In the existing situation the government will also have the status of an “acting” one, and this kind of Cabinet of Ministers can be neither replaced nor controlled.

The very procedure of surrendering mandates is questionable. Viktor Musiiaka, a well-known lawyer and member of the Ukrainian Forum Council, made the following categorical comment: “The Verkhovna Rada is truly authorized if no less than two-thirds of deputies are elected — this is the reason for the early elections. According to the official interpretation of the Constitutional Court from 2002, the Verkhovna Rada’s activity stops until parliament gets the necessary number of elected deputies.”

Oleksandr Myronenko, a former constitutional judge, says that the “two-thirds” norm was written with reference to a mixed-election system. The proportional principle of forming the corps of parliamentarians anticipates the substitution of parliamentary seats that have become vacant as a result of the “suicide” of fractions by members from the lists of remaining parliamentary parties. It is quite possible that such an interpretation of Article 82 of the Constitution may soon be confirmed by a ruling of the Constitutional Court. What will happen then?

This legal, and in fact political, collision can be resolved with the help of the so-called “nullification” of party lists. However, it is premature to consider that this intrigue has been exhausted. In the first place, a number of parliamentarians from the BYuT and Our Ukraine fractions who are willing to give up their mandates voluntarily are, on second thought, not so well-disposed to the idea. The Our Ukraine bloc may come to grief in this project because of its undefined relations with Kinakh’s party. Second, the nullification was declared illegal by the Pechersk Court, and its decision has not been annulled. Third, Oleksandr Moroz, the head of the Verkhovna Rada, calls this precedent an “adventure” and assures the public that parliament will continue its session this week.

It turns out that Ukraine’s parliament is still not dissolved, which means that the early elections remain more of a possibility than reality. Musiiaka thinks that Article 90 of the Constitution should serve as the basis for the early elections: both the opposition and the coalition have not met for 30 days. At the very least, any violation of the law linked to the stoppage of the Verkhovna Rada’s work, will evoke doubts in the legitimacy of the early elections, which may be exploited by overly ambitious political forces. So, like before, Ukraine will probably not have a full- fledged Verkhovna Rada even four months from now.

In the opinion of Valentyn Symonenko, the head of the Accounting Chamber of Ukraine, the probability of a clinch and even the total collapse of the state administration system is connected with a specific feature of Ukrainian democracy. In the last while, it has been growing increasingly “contractual,” i.e., the law is considered secondary to personal deals, and it is already clear how strong they are.

As Borys Oliinyk, a member of the Ukrainian Forum Council, admitted, the so-called “position of the three” has once again become mired in settling personal and inter-fractional accounts, and every truce is temporary. Myronenko’s view is harsher: The “statement of the three” is an example of disregard for the rule of law, because a free interpretation of norms and laws is too unreliable a bulwark for anticrisis actions.

Vitalii Boiko, the retired head of the Supreme Court, is convinced that holding early elections without regaining trust in the judiciary, above all from high-ranking officials, will lead the country into a new dead end. We should be prepared for the courts to be active participants in the elections. As it is, the number of electoral disputes that are being decided in the courts is growing by geometric progression.

Meanwhile, Ukrainian judicial and procedural legislation is far from perfect, and this is another potential dead end where the country may end up after the elections. Boiko thinks that the fifth-convocation parliament should devote every minute left to improving the legislative base of the courts’ activity and establishing a system of specialized administrative courts.

In today’s situation, only effective and uncorrupted courts can “balance” the branches of power. Here it should be noted that in the US the main counterbalance to the president is the Supreme Court, not Congress. In Ukraine, according to Vasyl Maliarenko, a former head of the Supreme Court, politicians continue to consider a court “effective” one that makes decisions in their favor. The fact that rulings handed down by different courts (sometimes the same one) contradict each other often suits one person. For example, over a period of several days a minimum of three people called themselves Prosecutor- General, and not unjustifiably.

Viktor Kononenko, another retired judge of the Supreme Court, says that when political passions rage, the courts cannot be effective. Meanwhile, ineffective courts are the very ones that become the first victims of a political catastrophe. One can exit this false circle only if there is a unanimous desire of all the power branches to “revitalize” the judiciary system and strictly verify their own political goals with the law. The main thing is that the Fundamental Law should cease being a “pole,” because today’s conflict has systemic conditions that will remain urgent even after the early elections.

Wrapping up the open session of the Ukrainian Forum, the participants reemphasized that a real compromise will be reached only when the sides reach an agreement concerning the need to complete the constitutional reform and start a reform of the judiciary system. There are no other guarantees of political stability. State leaders have enough political will to reach a compromise and avoid a violent confrontation. But will there be enough tomorrow, when the government faces the next challenge — a new round of coalition-forming?