By Mykola Riabchuk
Eight years ago, in Warsaw, at an informal ‘round-table’ meeting between the representatives of Ukrainian authorities and opposition, Javier Solana, the former Secretary General of the Council of the European Union, who happened to be mediating the discussion, made his famous remark about the simplest solution for the main political problem of the Ukrainian elite. He advised Ukrainian politicians to stop playing with rules and begin playing by rules.
The then incumbent president Leonid Kuchma and his associates apparently ignored the advice – and brought the country to the popular upheaval remembered as the Orange Revolution. His successor, the leader of opponents from the opposition camp did not perform much better – and brought the country inevitably to a ‘democracy fatigue’ and, ultimately, to the restoration of the ancien regime in its ugliest, Donetsk-cum-Lubyanka, form.
Nine months of the old boys’ reign have not signaled any changes in the old bad habits. On the contrary, playing with rules has become even more unscrupulous, cynical, and ubiquitous than ever. Selective application of law, manipulation of juridical bodies, and complete neglect, wherever convenient, of constitutional subtleties seem to be the only areas in which Yanukovych’s team is really consistent, inventive and, in a way, ‘professional’. From the start, they did not hesitate to create the government in a clearly unconstitutional way, to postpone the local elections by a simple majority vote in the parliament – even though the elections timetable is firmly defined by the constitution—and to extend for 25 years the lease of the naval base in the Crimea to the Russian Black Sea Fleet, even though the constitution unequivocally forbids the stationing of foreign troops on Ukrainian territory.
The recent cancellation of the 2004 amendments to the Ukrainian constitution came as little surprise since, on the one hand, these amendments were the last juridical obstacle to the complete concentration of power in the hands of President Yanukovych, and, on the other, the Constitutional Court, completely emasculated and purged of disobedient members, was effectively transformed into an obsolete rubber-stamp institution. Yet, it is not the content of the Court’s decision that is really important here but the way and the context in which it was made, and the implications that ensue.
No one actually would deny that the 2004 amendments – the so-called “constitutional reforms” – were made in haste, with multiple violations of the procedure. They created a system of ‘overlapping powers’ rather than separated the branches of government to establish strong checks and balances. Again, as in 1996 when the new constitution was adopted or in 1991-92 when the old Soviet one was patched up in the wake of Ukraine’s independence, all the changes reflected the existing balance of powers and the bargaining position of participants far more than any idealistic drive to create a perfect document and facilitate the development of liberal democracy and rule of law.
In all these cases, decisions were political rather than juridical and therefore, from the procedural point of view, all of them can be easily reconsidered – including also the declaration of Ukraine’s independence, the dissolution of the USSR, the transfer of the Crimea from Russia to Ukraine, the incorporation of Western Ukraine, Bolshevik takeover, and so forth. Legal decisions on political issues may imply their de-legitimization but should not automatically entail complete cancellation, meaning that they are no longer binding. De-legitimization does not negate a law, but implies a change of procedure, i.e. its adjustment/improvement based on legal (and moral) evaluation and consensual promotion of justice. De-legalization—the self-serving and cynical way in which the president uses the court decision—instantly destroys the existing order, provoking chaos and confusion.
The 2004 constitutional reform was, indeed, conceived very poorly and required further revisions. Yet, it was a step in the right direction – as Yulia Tymoshenko belatedly recognizes today, and as Yanukovych used to recognize three years ago when he was in opposition and crying foul at Yushchenko’s attempt to reconsider the constitutional amendments. The very fact that these political leaders’ attitude toward the basic law of the nation depends primarily, or even exclusively, on their position in power reveals their highly opportunistic, self-serving, and unprincipled character. None of these ‘reformers’ has ever bothered about greater efficiency of the law and the common good. All of them fought instead for personal gains, undermining, ignoring, and compromising various clauses of the existing document in the meantime.
This is the context that makes the decision of the Ukrainian Constitutional Court more important – and depressing – than its sheer content. The content reflects the letter of law, while the context reflects the spirit of lawlessness. It means all the letters of law within this context and under this spirit will be read and applied selectively – to the extent that they suit the authoritarian ambitions of the president and his team and serve their drive towards the monopolization of power and resources. The old Bolshevik principles that faded a bit under Yushchenko’s feckless presidency, are coming again to the fore under his more ‘assertive’ successor: might makes right, winners take all, goals justify the means, and political expediency outweighs the law.
President Yanukovych and his associates are apparently building a Russian-style system of ‘managed democracy’ – the only system they know and understand or, rather, believe they know. Such a system, however, without checks and balances, fair competition, transparency and accountability, tends to be inherently rotten, corrupted, and inefficient. The desperate need for modernization recognized by the Kremlin rulers, and their perfidious calls to the West for help are, in fact, a euphemistic expression of the profound crisis in the system they have built.
One may wonder how Yanukovych & Co can make an unreformed economy work and how they can appease their citizens without the resources and petrodollars that their Russian mentors possess in such abundance. And how will they mobilize their citizens without a strong nationalistic appeal, without a great power imperialistic idea, and a powerful myth about hostile Western encirclement that still works in Russia but is rather obsolete in Ukraine? They seem to believe sincerely that Ukraine can be ruled like Russia or their native Donbas. They are wrong and they will certainly fail. But the price of the failure might be very high and, what is worse, all Ukrainians will be made to pay for it, not only their obsolete rulers.