COMMENT: Ukraine must turn to primary source of all power - the people

By bne IntelliNews April 5, 2007

International Centre for Policy Studies in Kyiv -

The president's decree dissolving parliament and resolutions from the parliament and the cabinet declaring this decree illegitimate have driven the political and legal situation in Ukraine into a dead-end. The inactivity of the Constitutional Court makes it improbable that there will be an immediate review of the appeal by deputies to determine the legitimacy of the presidential decree.

This situation has come about because all branches of government in Ukraine have been ignoring the rule of law and the rules of honest political competition. This could be seen in the way the government failed to carry out the provisions of the Manifesto of National Unity that it had signed on to; in the fact that all government representatives, including the president, failed to respect court rulings; in the Rada's deliberate adoption of laws that were in clear violation of constitutional norms and even grossly violated the legislature's own rules of procedure; and, finally, in the way the coalition has been trying to expand its numbers to a majority in ways that are not allowed by the constitution.

All these actions have been cutting into the level of trust among Ukrainian voters in the institutions of government, continuing the cycle of legal nihilism and the scoffing of the law at all levels in Ukrainian society.

The president's decree must be carried out

President Viktor Yushchenko issued a decree dissolving the current legislature that is within his competence to do, as stated in Article 106 of the Constitution of Ukraine. Until the Constitutional Court hands down a ruling as to the constitutionality of this decree, this decree must be carried out by all government bodies, their officials and elected officials on all the territory of Ukraine. The Rada and government are not qualified or authorized to evaluate the constitutionality of a presidential action, as this is the exclusive prerogative of the Constitutional Court. Any statements about the unconstitutionality of this decree and the impossibility of carrying out the presidential decree amount to an usurpation of state power.

The conditions for resolving this political crisis are:

-- all government and administrative bodies must strictly observe all legal norms, while the law enforcement branch and defence forces must refrain from interfering in the political process and maintain law and order in the country;

-- the Rada and government must carry out in full all the measures declared in the presidential decree;

-- the Constitutional Court must render a ruling as soon as possible regarding the legitimacy of the presidential decree;

-- should the decree be declared unconstitutional prior to the holding of a pre-term election, the election campaign must be immediately halted and the work of the Fifth Convocation of the Rada resumed in full force;

-- should the decree be declared unconstitutional after the holding of pre-term elections, the results must be recognized and the Sixth Convocation of the Rada formed on that basis. In both instances, all political and moral responsibility for having taken an unconstitutional action shall lie with the president.

Re-elections are a democratic step

Re-elections won't resolve the problem of relations among the centres of power in Ukraine. The next coalition may be little different from the current one and it will, once again, have to deal with the same issues: first of all, the failure to uphold the principle of rule of law and respect for the law, the rejection of democratic mechanisms for conflict resolution and a consensual approach to consolidating interests.

Any future coalition will be faced with the same challenges: the lack of a comprehensible state policy and priorities in many spheres; the unreformed government bureaucracy; and the lack of reform in the civil service. In this sense, re-elections will not remove any of the evident problems but only postpone their resolution.

Still, in a situation of political conflict, re-election allows politicians to turn for a mandate of trust to voters, the only source and bearer of power, and to confirm their rightness through the support of the population. Voters themselves are the final recourse for resolving conflicts and politicians must turn to them when they cannot resolve their conflicts in any other way.

In addition, the process of elections will force all political forces to once more have their say about their priorities in state policy and to clarify the political platforms of the major political parties. Elections could play a positive role in the process of clarifying national policy and stimulating further movement along the path towards comprehensible, concise state policy-should voters demand this, of course.

In democratic countries, political forces voluntarily call for pre-term legislative elections in this kind of situation. This was the case in the UK in the winter of 1979, when the government of Margaret Thatcher replaced that of James Callaghan in pre-term elections and became one of the most successful reformist governments. This also happened in 2006 in Germany.

Re-elections are also politically inevitable if the opposition and president insist on it, given that they control more than l50 seats in the Rada. In this situation, the Rada is effectively unable to work, as the presence of less than two-thirds of deputies at any session places under question the legitimacy of any decisions adopted at that session. T

his means that re-elections will have to take place not only from the formal legal point-of-view, but also for political reasons. When the country is threatened by a political crisis and there is no way out of it using legal and political methods, then the state must turn to the primary source of all power in a democracy, the people, and gain their permission to carry on the governing.

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