What I respect about our president is his consistency. He says something — and it's like he cuts it off. The next day he will say something directly opposite, yet equally categorical. A day later he returns to his initial point of view. However, only so that in a few days (or even hours) he will again betray his own word. In his contradictoriness, the head of state is surprisingly stable. Consistent illogicality has become Viktor Andriyovych's trademark. It causes confusion in the ranks of opponents and bewilders allies. It sharply and inevitably reduces the number of those who understand what Yushchenko wants. It slowly but just as inevitably increases the number of those who realize why reform is needed.
A fable about two presidents
The president's legal ignorance is a well-known fact. It is sad but commonplace. Representatives of the top league of domestic politics are, unfortunately, prone to this sin. Many remember the free interpretation of the Fundamental Law as performed by Petro Poroshenko. Or Yulia Tymoshenko's attempt to attribute non-existent flaws to political reform. However, in Yushchenko's case, everything is somewhat more dangerous. Because he is not only the highest official, the Supreme Commander-in-Chief and the head of the National Security Council. He is entrusted with the functions of guardian of constitutional norms and guarantor of their strict observance. For some reason, the main servant of the people neglects this duty. The president's legal ignorance looks glaring, defiant and even militant. Therefore — especially frightening.
"The case of immunity" is merely a small chapter in the collection of political-legal oddities collected by Viktor Andriyovych. Small, but very instructive. This story clearly demonstrates what the president stubbornly does not want:
— to read and understand the laws and the Constitution;
— to implement them and demand the same from subordinates.
So, let's start from the beginning. On September 8 of this year, the Verkhovna Rada approved amendments to the Law "On the Status of Deputies of Local Councils." Let us explain the essence of the innovations: parliamentarians proposed extending deputy immunity to their colleagues from the regions. The adopted amendments provided that from now on a provincial people's deputy cannot be held criminally liable, arrested or subjected to administrative preventive measures without prior consideration of the relevant issue by the local council. The new version of the law also envisaged a number of other ways to protect regional deputies from encroachment by law enforcement agencies.
The number of supporters of such an adjustment to the legislation was quite large — 270 parliamentarians voted for it. Moreover, the votes were divided very interestingly. The factions of "Our Ukraine," the People's Movement and... the SDPU(o) acted as categorical opponents. Of the 58 members of the pro-presidential caucus, only four supported the proposed amendments. The Social Democrats in full composition ignored the vote. At the same time, the innovations were unanimously and practically unanimously approved by the delegations of the CPU, SPU, BYuT, the People's Party and "Regions." In addition, "for" voted 11 of the 22 members of the UNP faction, as well as 11 of the 20 representatives of "United Ukraine."
Such an unusual pattern of vote distribution suggests how difficult this issue was for the deputy corps. There were too many various moral, political and legal nuances in it. However, the necessary resolution still gathered the required number of votes. For it to become effective, only the president's signature was needed.
Article 94 of the Constitution obliges the head of state within a fifteen-day period to sign the law adopted by the Rada or return it to parliament for reconsideration, providing motivated and properly formulated proposals. Viktor Andriyovych's predecessor regularly ignored this norm — he did not put his royal autograph, but also did not impose a veto. Yushchenko, as it turned out, follows Leonid Danylovych's bad example. Law No. 4201 remained without presidential attention. The obvious intention of the head of state not to sign but also not to reject the new normative act primarily displeased the "regionalists." On the eve of the repeat vote on the candidacy of Prime Minister Yekhanurov, Viktor Yanukovych and his comrades demanded that Viktor Andriyovych fulfill his constitutional duty. The president assumed the obligation to sign the law, and the corresponding clause was written into the notorious Memorandum of "mutual understanding between the authorities and the opposition."
After signing the pact with the "Donetsk people," Yushchenko spoke at length about the importance of the adopted document, about the political value of the carefully written demands, about the need to keep the promises made. Not a single word was said that he, the president, did not share some of the points of the memorandum, that he was forced to sign something that contradicts presidential convictions. This was, let us recall, on September 22.
Days passed, but Law No. 4201 just as vainly awaited the president's signature. The requirement of the Constitution remained unfulfilled, and the promise given to the "regionalists" — as well. Another two weeks passed. On October 4, Viktor Yushchenko appeared on the air of four television channels at once. To a journalist's question about whether he would sign the law on granting immunity to deputies of local councils, the very consistent and very principled president reported that he firmly "stands on the position of removing immunity" from deputies of all levels, including members of parliament.
Several questions arise. First. Did Viktor Yushchenko inform Viktor Yanukovych of his position before signing the memorandum? Second. If the president's position on the institution of deputy immunity is so consistent and irreconcilable, why did he assume the obligation to sign the corresponding law? Third. If, despite all of Yushchenko's principledness, in this matter he was nevertheless forced to act against his conscience, then who exactly and in what exact way did this? And why did Yushchenko not declare this? Fourth. When exactly was Yushchenko honest? On September 22, when he signed under the obligation to legalize the immunity of deputies of local councils? Or on October 4, when he declared that he advocates the elimination of deputy immunity as a class?
But that's not all. The next day, October 5, it was announced that the president had signed the law extending deputy immunity to locally elected officials. Why then, on the eve, say that you are against immunity? Another day passed. On October 6 in Lviv, Viktor Andriyovych calls deputy immunity a relic and calls for not dividing the people of Ukraine into immune deputies and non-deputies not endowed with such a privilege. Why then sign the law?
A persistent impression has formed that two presidents live and act in Ukraine who do not always share each other's point of view. If only they could somehow meet and come to an agreement...
On the benefits of careful reading
It is hard to find human logic in the actions of the guarantor of the Constitution. It is even harder to find political logic. And completely impossible — legal logic. Do you know how Viktor Andriyovych justified the appearance of his visa under the law? It turns out he signed it not because the Constitution requires it and not even because the president in writing obligated himself to do so by putting his autograph under the memorandum. As it turned out, the head of state was "pushed to this" by the decision of the Verkhovna Rada, which "testifies that political forces in this way understand the logic of resolving this issue."
Then complete absurdity. The president signed the law on guarantees of immunity for deputies of local councils and immediately declared that he would appeal to the Constitutional Court to challenge... the legal validity of the law he himself signed. The press readily quoted Viktor Andriyovych's aphorisms. "I am making a constitutional submission regarding the constitutionality of the provisions on the immunity of deputies of all levels... A people's deputy — is this a special person or an ordinary citizen. I think that an ordinary citizen..."
Let us examine Yushchenko's behavior from the point of view of political logic. There is trouble in his political house. The Rada does not wish to approve the prime minister proposed by the president. The opposition demands concessions. The head of state makes them. He, contrary to his own convictions, agrees to the expansion of the institution of deputy immunity, believing that the opposition's support is worth it. He assumes an obligation and guarantees its fulfillment. Such a position is not flawless, but understandable. But in this case Yushchenko should have signed the law back on September 23 and kept silent about his disagreement. However, Viktor Andriyovych dragged on as long as possible and signed the law only when Yanukovych threatened to withdraw his signature. He visaed the document but essentially declared his readiness to do everything possible to prevent it from becoming effective. That is, about his unwillingness to fulfill the obligation he had assumed. Why assume it then? And who, in that case, would believe any other promise of the president?
Let us look at Viktor Andriyovych's act from the point of view of legal logic. If he doubts that granting immunity to deputies of local councils is a constitutional matter, why did he sign the law? Let us recall that Article 94 obliges the president either to sign the law or to impose a veto on it. Let us also recall that the president is the guarantor of the Constitution. And if he has grounds to believe that the deputies' initiative violates the principles of the Fundamental Law, he is obliged to set out his remarks and was obliged to return the law to the Rada.
He did not do this. Although there are grounds to doubt the constitutionality of the law granting immunity to deputies of local councils. There are simply no lawyers who would explain to Yushchenko what he should have done.
And he should have done, for example, the following. Take the decision of the Constitutional Court of December 23, 1997 and study it carefully. And find there such a passage: "The immunity of officials is a guarantee of a higher level compared to the immunity established for all persons, which corresponds to the principle of equality of rights and freedoms of citizens and their equality before the law... Guarantees of a higher level (for deputies, judges and other officials), since they presuppose an exception to the general equality of rights and freedoms of citizens and their equality before the law, must by logic be determined exclusively by the Constitution."
After this, Viktor Andriyovych's assistants should have composed a paper of the following content: "Dear deputies! Having carefully familiarized myself with your legislative searches, I found them not entirely constitutional. Eight years ago the Constitutional Court expressed the assumption that special guarantees (to which the CC includes deputy immunity) must be determined by the Constitution. According to the Constitution, such guarantees do not extend to deputies of local councils. On this simple basis, I, as the guarantor of the Constitution, with full right impose a veto on your law."
This is approximately how the president should have acted. And he should have done this not at the beginning of October but at the beginning of September. In this case he would have:
— fulfilled the requirements of the Constitution, which oblige him to visa (reject) the law within a 15-day period;
— freed himself from the need on September 22 to make concessions that contradict his principles;
— demonstrated that he truly is the guarantor of the Constitution.
In addition, in this case he would have seized the political initiative. Or the Verkhovna Rada would have had to overcome the veto (which is unlikely). That is when the president would not have looked like a person who neither ate the fish nor choked on the bone.
However, yesterday Roman Bezsmertnyi stated that the president acted correctly. According to him, the law does not directly speak of the immunity of deputies of local councils, therefore "there were no formal grounds for a veto. But as a result of the procedure of bringing to responsibility, something almost identical to immunity emerged... Therefore the president wants to clarify in court whether in this case deputy immunity and the procedure for bringing deputies to responsibility are identical," he said.
Once again I return you to the CC decision of December 23, 1997. In it, in particular, it says: "by this provision, deputy immunity (without using this concept) provided for by Article 80 of the Constitution of Ukraine is actually extended to the specified officials." It is not necessary to call the concept by name. The CC has already said this. And the president was obliged to arm himself with this word.
The president did not read the CC decision of 23.12.97. Then he would not, among other things, have been troubled by the question of how a deputy differs from an ordinary citizen. But he, it seems, did not read the Constitution either. Otherwise he would not have raised the question of the constitutionality of "the immunity of deputies of all levels." Why do you need the Constitutional Court, Viktor Andriyovych? Open the Fundamental Law and read Article 80. "People's deputies of Ukraine are guaranteed immunity." Full stop.
You do not like this provision, Viktor Andriyovych? You know, I am not very fond of it either. However, it is the "body" of the Constitution and mandatory for implementation. And you personally are the guarantor of strict observance of this norm. No one has relieved you of this duty. Just as no one has deprived you of the right written in Article 93 of the Fundamental Law — the right of legislative initiative. Which for some reason you are in no hurry to use. And Article 154 of the same document allows you to be the author of a bill on introducing amendments to the Constitution. Do you not know whether you have the right to encroach on deputy immunity? You do: on June 27, 2000, the Constitutional Court gave clarification on this.
But in this case, you, Viktor Andriyovych, need to take into account the experience of Leonid Danylovych, who five years ago also tried to deprive parliamentarians of immunity. At that time, opponents of the regime decisively opposed this, considering immunity one of the few effective ways of protection against repressions. And today very many reasonably raise the question: would the anti-presidential opposition have survived until the winter of 2004 if all its leaders, headed by you, had not had deputy immunity?
Has democracy already won? Then go ahead — introduce amendments to the Constitution, find 300 votes. Just be aware that preparing such a bill is much more difficult than a memorandum or a submission to the Constitutional Court. This will require qualified lawyers, who for some reason are not visible next to you.
Reform without beginning or end
If the author of these lines is wrong, then why does the president today say the following: "Political reform must be done. Which one? Let's think about it"? And why does he ramble on about the timing of its introduction?
It is a pity, Viktor Andriyovych, that you were not with us. You would have learned that the reform was already approved on December 8, 2004, and 402 people's elected representatives voted for it, including 78 representatives of the "Our Ukraine" faction headed by you. You would have been aware that the corresponding constitutional changes will become legally effective from January 1, 2006, although certain provisions will come into force after the next parliamentary elections. You would have known that after these very elections your powers will be somewhat curtailed, but despite this, you will still remain a very influential political figure.
Which, by the way, greatly surprised the Venice Commission at the time. European experts in the field of constitutional law, analyzing the domestic political reform, welcomed the desire of Ukrainian legislators to establish the principles of parliamentarism. However, they wondered why, in that case, such large-scale powers for the president? The very powers that the president himself called the powers of the "British Queen."
Today many parliamentarians are already seriously thinking about deepening constitutional changes. There is both an occasion and a reason for this. The reason is the president's inability to use his constitutional rights and unwillingness to fulfill his constitutional duties. Both, unfortunately, have become obvious. The occasion is the sudden death of bill No. 3207-1. Let us recall that this document provided for changes to the Constitution concerning local self-government and was approved by the Verkhovna Rada in December of last year. In accordance with the requirements of the Constitution, it would have been considered adopted if it had been supported by 300 people's deputies by September of this year. However, this did not happen. The Constitutional Court was somewhat late in issuing the corresponding conclusion, and the deputies did not meet the allotted deadlines.
But the legislators felt sorry for the work done, and the other day a decision was made to revive and modernize this project. The new version (unlike the old one) provides for a significant expansion of the rights of the regions in general and local self-government bodies in particular.
First, the updated "3207-1" gives a clearer legal definition to the very concept of "local self-government." Second, it secures for local communities the right to approve local budgets. Third, it establishes that the basis of local budgets will be a fixed part of taxes and fees. Which one — is to be determined by law.
In addition, a genuine reform of the system of local government is envisaged. Let us recall that, according to the Constitution, heads of local administrations are appointed and dismissed by the president. Abolishing this norm is not considered possible. However, no one forbids legislators from granting administrations other functions. According to the work of the temporary constitutional commission of the Rada, the scheme for distributing the powers of local government will look as follows:
— executive functions are assigned to executive committees of local councils, subordinate to central executive bodies;
— local administrations will exercise control over compliance with legality by executive committees of local councils, thus turning into something like prefectures.
Thus, it is envisaged:
— to exclude the principle of duplication of powers in the system of executive power;
— to remove the presidential vertical of management, which is senseless and even dangerous when establishing the principles of parliamentarism;
— to promote the development of regional independence;
— with the help of reprofiling local administrations, to preserve state control over local government;
— to establish a clear scheme of interaction "Kyiv — regions." The presence of three vectors — "President — administrations," "Cabinet — executive committees" and "Rada — local councils" — gives various institutions of power the opportunity to influence the situation in the regions.
The model is somewhat raw and needs refinement. However, today in the Rada it finds far more supporters than a year ago. The initiators of the innovations (among them representatives of the vast majority of factions) believe that this project will be approved at this session by 226 deputies. And in February it is quite capable of gathering 300 votes and becoming part of the updated Constitution.
It is not at all certain that such a model will be enshrined in law. However, an indisputable fact is that the number of those ready to support it grows every day. Among them are both long-time enemies of Viktor Andriyovych and his recent associates. Some have irrevocably lost faith in the effectiveness of the presidential system of power as such. Others have finally lost faith in Yushchenko. In the reliability of his word. In his readiness to become a law-abiding citizen. In his ability to make adequate decisions. In his capacity to grow into an effective politician.
For many, the new constitutional project is turning into a legislative confession of their disillusionment.
To each of them the president has given too many reasons.
Serhiy RAKHMANIN