Ukraine in the Claws of Vampires
Andrew ChruckyMay 2012
This conference means to honor the memory of Havel and others who wrote against the so called post-totalitarian regimes. However, we, in Ukraine, are no longer living in either a totalitarian or a post-totalitarian regime. We have transitioned from a regime steeped in ideology to a regime dominated by capitalist greed and exploitation -- a regime of economic vampires. The system of government we have embraced is a form of "liberal democracy" in which political offices are bought with money. As everyone in Ukraine knows, we are ruled by oligarchs.
In a post-totalitarian regime there was no right of self-expression or a criticism of ideology. Since 1991, the government no longer cares about ideology -- so freedom of expression is widespread. What the politicians care about is their personal welfare, and they do everything they can to stifle expositions of their corruption. This is obvious during the presidency of Kuchma. During his tenure scores of journalists were killed -- not for ideological heresy, but for exposing the corruption in government.
With the presidency of Yushchenko, the problem shifted to a power struggle within the government.
With the ascendency of Yanukovych, the power struggle continues in the form of jailing political opponents -- specifically, the jailing of Yanukovich's arch-rival for the presidency -- Yulia Tymoshenko. Yanukovych knows that in the next presidential elections, if Tymoshenko were running, he would be defeated. And if she were to become a deputy in the Verkhovna Rada in 2012, she would gain a deputy's immunity from prosecution. For this reason, it is more important for Yanukovych to neutralize her, then to win the friendship and cooperation of Europe.
How can the president do this? The answer is simple. The 1996 Ukrainian Constitution gives the President almost dictatorial powers. He nominated all the cabinet posts, including the Procurator, who then brings to trial anyone the President wishes. The President also nominated 1/3 of the Constitutional Court, and the Procurator is a member of a group which appoints judges. The Procurator -- following the wishes of the President -- can charge anyone with some crime or other -- including judges and irritating politicians. Tymoshenko was charge by the Procurator who followed the wishes of the President; the Constitutional Court ruled as unconstitution the 2004 amendemnts to the Constitution, again because the President has control over the Justices in the form of appointments and possible prosecutions of trumped-up judicial improprieties. And the judge who tried Tymoshenko was a hand-picked novice, whose job depends on the Procurator, and thus on the President's will.
The remedy to this problem is simple -- curtail the power of the President. But how can this be done? The answer to this is also simple -- change the Constitution. How? The answer to this, however, is not simple at all -- but quite puzzling. Under the 1996 Constitution, the Constitution can be amended in only two ways: (1) the President can propose an amendement, or (2) 1/3 of the Verkhovna Rada can propose an amendment. In either case, 2/3 of the Verkhovna Rada has to vote in favor of the amendment. But this is not so straight-forward. In 2010 the Constitutional Court overturned the 2004 amendment to the Constitution -- in effect, making itself the final arbitrer. But the Constitutional Court does the will of the President -- so, ultimately, the Constitution can be amended only by the will of the President!
Ukraine is caught in an impasse! And I have no remedy to offer.
However, I do have this proposal. If Ukraine can find an independent way to change its Constitution, I would propose as a model for a constitution the Constitution of Switzerland, which for starters does not have a President, but a Federal Council consisting of seven individuals. The key to the success of Switzerland as a democracy is the right of the people to change their constitution through initiatives or referendums.