Dead Soul Democracy
One crucial event for Ukraine hit the world headlines on 27 April, others did not. This was strictly in accordance with the principles of news entertainment: smoke bombs and brawls in parliament are much more gripping than elections of European Court judges, presidential speeches in Strasbourg and the profanation of fundamental principles of democracy.
The immediate background to the bedlam in parliament had also received attention. Media attention, I would note, since any high-level European officials waited until after the agreement between the Presidents of Ukraine and Russia had been ratified by parliament before criticizing it. There were plenty of Ukrainians outraged by an agreement made without any public discussion which permitted the Russia’s Black Sea Fleet to be positioned in Ukraine up till 2042 in exchange for gas concessions up till 2019. In a nutshell, there was anger over something directly affecting Ukraine’s national security being a bargaining tool in gas negotiations. Concern was also expressed within the country and abroad that the gas concessions are for the benefit of a small number of rich industrialists and will not significantly help the country. They are in fact an impediment to the inevitable task of reducing Ukraine’s wildly inefficient energy consumption. Over the next few days information was also received about agreements for cooperation with Russia in a number of areas, including nuclear energy. This is despite strong protest from environmental groups over existing plans for constructing two more power units for the Khmelnytsky Nuclear Power Station using a Russian loan and technology which has not even been used in Russia (khpg.org/index.php?id=1272277284). As with the Black Sea Fleet there has been no public consultation, simply confrontation with a fait accompli.
Even if we assume, with absolutely no grounds whatsoever, that Putin’s suggestion of a possible “merger” of Gazprom with Ukraine’s state energy holding Naftohaz, was not to be taken seriously, Ukraine’s move into Russia’s sphere of influence would require serious effort to ignore.
All the developments which the USA and the European Union are willing to not notice have been disturbingly clear for almost two months now. A government of extremely dubious legitimacy was established after the ambassadors of EU and G8 countries at a meeting with President Yanukovych on 9 March made no objection to a law which ran roughshod over Ukraine’s Constitution. They would seem to have demanded only that the Constitutional Court “be asked” for its opinion. Now since the same Constitutional Court had already given an unequivocal opinion on 17 September 2008, they were effectively asking that the same Court change its mind, which it duly did on 6 April (cf. http://eng.maidanua.org/node/1051 ).
Before the Constitutional Court saw fit to thus reinterpret the Constitution, the same countries’ representatives had been sent a number of appeals regarding human rights concerns. These, together with letters regarding the constitutional violations used to bring the new government to power, were all ignored, as indeed was a letter from the author of these lines asking how to make an official complaint.
The first sign of any real concern from the European Union over threats to freedom of speech came on 30 April (in English at: http://www.khpg.org.ua/en/index.php?id=1272629661) This was after similar statements had been made on a number of occasions by Ukrainian media representatives and Reporters without Borders.
The USA has yet to make any comment.
As a method of defending democratic values, this cannot be considered optimal. It would be hard, in fact, to find a worse message – if you have an interest in Ukraine’s development as a law-based democracy. We do. Those who came to power by violating the Constitution were effectively given to understand that there would be no reading even of the lines of the Constitution, let alone between them, so long as the Constitutional Court “obliged”. Those who have had little reason to believe in the independence of their own judicial system were confirmed in their pessimistic assessment of domestic justice, with the added nuance, openly discussed in the press, that the USA and EU were aiding and abetting this.
In short, if the gloss is there, not much else matters. A classic example within the country was a meeting between the President and the Minister of Internal Affairs. President Yanukovych – or his official site – had publicly rebuked the Minister following protests from human rights groups at the discontinuing of important mechanisms for preventing human rights abuse within the Police force. The Minister did not back down, the mechanisms were discontinued, yet the same official site reported a meeting at which the same Minister reported on his implementation of the same President’s instructions. This he claimed was through “creating” public councils which have been created now for three years, but appointing as their head (which the Minister has no right to do) a person who except on the President’s website can only be called a “human rights defender” with inverted commas, preferably in bold (more details here: http://eng.maidanua.org/node/1060 ).
Outside the country, attention to democratic detail is also not always strong. However one very cheering event for Ukraine must be warmly welcomed – the election by Deputies of the Parliamentary Assembly to the Council of Europe [PACE] on 27 April of Anna Yudkivska as Judge of the European Court of Human Rights with respect to Ukraine. This was an enormous boost to all those who know Ms Yudkivska’s professional ability and her unfailing commitment to human rights, and a relief that a judge had been chosen for this vital post with no political connection.
It is, of course, entirely understandable that all three candidates, including National Deputy [MP] Serhiy Holovaty, should have been present during the election proceedings on 27 April in Strasbourg. What is less comprehensible is why, on that same day in the vote on ratification of a highly controversial agreement with implications for national security, Mr Holovaty is registered as having been present in the Verkhovna Rada in Kyiv, and as having voted for ratification.
Another event in Strasbourg on 27 April was President Yanukovych’s address to PACE. Mr Yanukovych stated, among other things, that Holodomor had not been genocide. While one would not wish to deny him the right to his own opinion, it would surely have been appropriate to stress that this was his personal view and that Ukraine’s legislators have recognized it as genocide. By the next day, a Party of the Regions Deputy was already suggesting that this law might be changed.
Another National Deputy from the same Party of the Regions, Serhiy Kivalov, who is one of Ukraine’s representatives on the European Committee for Democracy through Law (Venice Commission) remained in Strasbourg to hear the President’s address. He too saw fit to breach Ukraine’s Constitution and allow himself to be registered and “vote” in his absence.
Neither Mr Kivalov nor Mr Holovaty have sought to have their votes annulled despite the fact that the media openly report their unlawful vote in absentia. Nor are they the only Deputies whose cards so to speak voted for them. There were 211 Deputies registered half an hour before the vote took place, yet 236 Deputies are supposed to have voted for ratification (226 were required).
The arguments used by members of the ruling coalition and the Constitutional Court to allow individual Deputies to leave the party they were voted in as members of and help other parties form a coalition included prohibition of imperative mandate and insistence on each Deputy’s right to choice. It is therefore interesting to note how a representative of the Party of the Regions, Oleksandr Yefremov, is reported as explaining the situation where cards voted without their owners. “He admitted that many deputies had physically been unable to vote however within the coalition the principle was accepted that its members vote according to the decision of the leaders of the factions”. (http://ua.korrespondent.net/worldabus/1071434 )
One assumes that this was what President Yanukovych meant in Strasbourg when he stated that “democracy is order”. With all due respect, democracy is also public involvement in decision-making, respect for human rights and freedoms, and for the rule of law. Those who flout these fundamental principles, and those who look on and say nothing, must be judged by their deeds or failure to act, not by fine and increasingly hollow words.
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