COMMENT: Can democracy actually survive in Ukraine?

By bne IntelliNews February 16, 2007

International Centre for Policy Studies in Kyiv -

The adoption and publication of the Law on the Cabinet of Ministers has confronted Ukrainian society with a critical problem, write Viktor Chumak, Ivan Presniakov and Oleh Myroshnichenko, analysts at the International Centre for Policy Studies.

The Rada is deliberately passing laws that contradict the Constitution. In the heat of political competition, politicians have been ignoring the principle of rule of law in an evermore blatant manner. This means the preservation of democracy in Ukraine will now be guaranteed not by laws, but by the goodwill of political leaders. But as the coalition and the government show little respect for the law, there is no guarantee they won't curtail other political institutions whose responsibility is to oversee the government and to criticize it – the opposition, the media and civil society

At the same time, there are serious doubts about whether Ukraine’s Constitutional Court will be able to quickly decide whether new legislative norms comply with the constitution. At the moment, as much as 4–5 months can pass from the time a law comes into force to the time when the Court cancels any illegitimate act.

To give an idea of how long it takes to wait for a Constitutional Court ruling, the court began hearing one appeal that was submitted on September 20 only on January 18 — four months later. If the coalition makes new decisions that are questionable as to their constitutionality during this time, the Constitutional Court will not be able to quickly evaluate these new decisions.

PM Yanukovych

This will leave relations among government institutions in legal limbo, if not outright chaos in the meantime. At the level of courts of general jurisdiction, this situation can raise conflicts as a result of a wave of claims filed by ordinary citizens and civil servants based on legal acts at various levels—the constitution and amended laws on the Cabinet of Ministers, local administrations, and so on.

Soon, Ukraine is likely to witness "raiding" of a new type. Having armed themselves with mutually contradictory court decisions on the legality of a particular appointment by the president or the government, candidates for positions of deputy ministers or deputy governors of local administrations will assault executive buildings and take higher offices by force. The example of the Mukacheve court banning the publication of the Law on the Cabinet of Ministers is only the first sign.

What can be done?

The main condition for a stable democracy in Ukraine is to immediately enforce the principle of rule of law. The main instruments of this must be a strong, impartial judicial system and an effective, independent Constitutional Court. As with all strategic goals, this goal cannot be achieved easily or rapidly. It will require a lot of time, which means that the president, the opposition and the government should begin to work on it right now.

The vigour with which the president and his secretariat are fighting over the Law on the Cabinet would yield more results if they focused on lobbying for reform of the judiciary and of law enforcement bodies, especially as concepts for these two sets of reform were developed long ago.

In addition, with an instrument like the National Security Council, this issue can be raised at an NSC meeting and the necessary Decrees issued that are binding on the Government.

The Rada opposition could bring equally worthwhile benefits to Ukrainian society, if, at when debating the 2007 State Budget, it would ask aloud how much money the budget has allocated to implement these reforms instead of vaguely reproaching the Cabinet for its “anti-social” Budget.

One effective measure would be a campaign among ordinary Ukrainians and think-tanks oriented on jurisprudence for a legal evaluation of the legality of government decision- making, involving wide media coverage of the issue of the failure of government bodies to adhere to the rule of law.

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