ACTION UKRAINE REPORT - AUR

An International Newsletter, The Latest, Up-To-Date
In-Depth Ukrainian News, Analysis and Commentary

Ukrainian History, Culture, Arts, Business, Religion,
Sports, Government, and Politics, in Ukraine and Around the World

The question remains whether democracy will survive in Ukraine. Now,

more than ever, the Constitutional Court must act and the Prime Minister,

the President, and the Rada will have to respect and adhere to the decisions

of the Constitutional Court regarding the dissolution of the Rada, the
interpretation of the political reform, and the powers of each branch of
government. If not, the country will sink even deeper into legal chaos.

Although I have hope that the rule of law will persevere in Ukraine, there
have been many questionable actions by most of the leadership on all

sides regarding political influence on the judiciary that may threaten the

country's democratic future.

In order for democracy and the rule of law to continue the Constitution

and the checks and balances contained therein must remain in full effect.

Democracy is in serious danger in Ukraine right now and it will take a

great deal of work and mutual respect between every branch of

government, particularly the Rada and the judiciary in order for

Ukraine to remain democratic. (Judge Bohdan Futey, Article 9)

Mr. E. Morgan Williams, Publisher and Editor, SigmaBleyzer

WASHINGTON, D.C., FRIDAY, APRIL 13, 2007

-------- INDEX OF ARTICLES --------

Clicking on the title of any article takes you directly to the article.

Return to the Index by clicking on Return to Index at the end of each article

1. UKRAINE'S DEMOCRACY MUST REST ON THE RULE OF LAW
COMMENTARY: By Viktor Yanukovich
Financial Times, London, United Kingdom, Friday, April 13 2007

2. UKRAINE: YANUKOVICH VOWS TO RESIST EARLY POLL
By Roman Olearchyk in Kiev, Financial Times

London, United Kingdom, Friday, April 13, 2007

3. SIDES STAND FIRM IN UKRAINE POLITICAL SHOWDOWN
By Ron Popeski, Reuters, Kiev, Ukraine, Friday, April 13, 2007

4. UKRAINE PM VOICES BACKING FOR EARLY ELECTIONS
Viktor Yanukovych signalled a major compromise, which could

lead to bringing an end to a two-week long crisis in Ukraine.
Agence France Presse (AFP), Kiev, Ukraine, Friday, April 13, 2007

5. UKRAINE: FAREWELL TO THE CARGO CULT
OP-ED: By Mykola Rjabtschuk (Riabchuk) (Published in German)
Berliner Zeitung, No.86, Berlin, Germany, Friday, April 13, pp.25-26.
Published by Action Ukraine Report (AUR) #827, Article 5 (in English)
Washington, D.C., Friday, April 13, 2007

6. YUSHCHENKO'S BIG GAMBLE
COMMENTARY: By Andreas Umland
The St. Petersburg Times, Issue #1262 (128)
St. Petersburg, Russia, Friday, April 13, 2007

7. WHY THE DEVELOPMENTS IN KIEV MATTER FOR GEORGIA
"The West is not actively engaged in the westernization of Ukraine"
INTERVIEW: With Aleksandre Rondeli, President
Georgian Foundation for Strategic and International Studies
By Maia Edilashvili, Georgian Times, Tbilisi, Georgia, Thu, Apr 12, 2007

8. UKRAINE: DID WEST PULL UP STAKES TOO SOON?
By Brian Whitmore, Radio Free Europe/Radio Liberty (RFE/RL)
Prague, Czech Republic, Thursday, April 12, 2007

9. "THE CONSTITUTIONAL CRISIS IN UKRAINE: LEGAL AND
POLITICAL RAMIFICATIONS IN A COMPARATIVE CONTEXT"
Democracy is in serious danger in Ukraine right now
COMMENTS: By Judge Bohdan A. Futey
George Washington University
Washington, D.C., Wednesday, April 11, 2007
Published By Action Ukraine Report (AUR) #827, Article 9
Washington, D.C., Friday, April 13, 2007

10. A FEW WORDS ABOUT RESPECT FOR THE CONSTITUTION
By Victor Musiaka. Professor, Kyiv Mohyla Academy
Verkhovna Rada deputy of the Second and Fourth Convocations
Mirror-Weekly, Dzerkalo Tyzhnya On The Web, No 13 (642)
International Social Political Weekly, Kyiv, Ukraine, Sat 7-13 April 2007

11. UKRAINE'S DEMOCRATIC CHOICE
COMMENTARY: By Yulia Tymoshenko
Daily Times, Lahore, Pakistan, Monday, April 9, 2007

12. MOROZ THREATENS TO BRING CC JUDGES TO ACCOUNT

Ukrayinska Pravda, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Action Ukraine Report (AUR) #827, Article 12, (In English)

Washington, D.C., Friday, April 13, 2007

13. OUR UKRAINE THREATENS PROSECUTION TO CC JUDGE
Ukrayinska Pravda, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Action Ukraine Report (AUR) #827, Article 13, (In English)

Washington, D.C., Friday, April 13, 2007

14. REGIONS BLOW WHISTLE ON YUSHCHENKO TO
PROSECUTION FOR ENFORCING PROTECTION TO CC JUDGES
Ukrayinska Pravda, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Action Ukraine Report (AUR) #827, Article 14, (In English)

Washington, D.C., Friday, April 13, 2007

15. MOROZ: CC JUDGES REQUEST CHIEF JUSTICE TO START
HEARINGS ON YUSHCHENKO DECREE VALIDITY APRIL 13

5 Kanal TV, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

16. "PARADOXICAL REGION" WHAT CAN DONETSK REGION GAIN
FROM EUROINTEGRATION? POLAND'S EX-PRESIDENT KWASNIEWSKI
By Hanna KHRYPUNKOVA, The Day
The Day Weekly Digest #11, Kyiv, Ukraine, Tue, 3 April 2007

17. POLAND'S ECONOMIC REVOLUTIONARY
By Steven Pearlstein, Business Columnist
The Washington Post, Washington, D.C.,
Wednesday, April 11, 2007; Page D01

18. DNIPROPETROVSK OPERA THEATER EMBARKS ON HISTORIC
PROJECT TO PRODUCE PUCCINI & MOZART OPERAS IN UKRAINIAN
By Adrian Bryttan, Action Ukraine Report (AUR) #827, Article 18
Washington, D.C., Friday, April 13, 2007
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1. UKRAINE'S DEMOCRACY MUST REST ON THE RULE OF LAW

COMMENTARY: By Viktor Yanukovich
Financial Times, London, United Kingdom, Friday, April 13 2007

As it was at the end of 2004, the world's attention is again focused on
events in Ukraine. Yet the widespread admiration our nation was greeted with
during that time is now being substituted by overwhelming concern.

President Viktor Yushchenko has attempted to dissolve the parliament under
the pretext of preserving democracy in Ukraine. Yet, as international
reaction has proved, no one has described the crisis in terms of an ultimate
struggle for democracy. Most see it as domestic infighting, fraught with
unpredictable consequences not only for Ukraine but also for the larger
European and global communities.

The background is simple. The constitution of Ukraine defines specific
circumstances under which the president has the right to dissolve parliament
and call an early election. None of these existed when Mr Yushchenko
announced his decision to dissolve Verkhovna Rada.

Convinced that the president is not a tsar who can dissolve an elected body
on his whim, the parliament refused to recognise his decision. Mr Yushchenko
insisted his action was legal. Given these conflicting views the parliament
appealed to the constitutional court, the sole independent authority, to
decide on the constitutionality of legal acts.

It is not my intention to oversimplify the situation. Mr Yushchenko's claim
requires a serious response. Like all Ukrainian politicians, I have learnt a
lot since the dramatic events of 2004. I truly believe that our political
pluralism, which should be cherished and preserved, is one of the main
sources of our national strength and a guarantee of Ukraine's bright future.

However, Mr Yushchenko's allegations that democracy in Ukraine is in danger
are simply not true. Democracy is thriving. I invite interested readers to
request a reference about the state of democracy in Ukraine from any
independent and authoritative source such as the Council of Europe, which
monitors our democratic progress.

The real problem lies in the diminishing support in society for the current
opposition parties and in the president's misjudgment in aligning himself
with only one part of the political spectrum.

All the main political forces of Ukraine want to see their country
successful, democratic, prosperous and integrated into the European realm.
The only substantive difference between them is in their capacity to bring
this desired outcome to fruition.

The ruling coalition has been in charge of the country's affairs for only
eight months, yet already it has provided conclusive proof of progress -
unlike its predecessors, who are currently in the opposition.

Whether we are talking about economic policies, implementation of democratic
and social reforms, fighting corruption, fulfilling Ukraine's international
obligations or making progress in Ukraine's European integration, the
success of the ruling coalition could not pass unnoticed.

That is the main reason why some members of the opposition in parliament
have given their support to the ruling coalition. Parliamentarians realised
that by acting in this way they would better meet the expectations of those
who elected them.

Let me make this absolutely clear: neither I nor the political parties that
form the government are afraid to go to the Ukrainian people to request
their judgment on our performance.

People's trust is the only source of power for our government. And,
according to most polls, the political parties in the current coalition are
expected to strengthen their positions substantially should an early
election be called.

What is at stake is the effective functioning of democracy. The freedoms and
privileges of a democratic society have to be enjoyed responsibly and no one
can be allowed a cherry-picking approach with regard to democratic norms
and principles.

As Javier Solana, the European Union high representative, once pointed out,
"Ukraine has to learn playing by the rules and not with the rules."

Calling an early parliamentary election without a legal justification has
challenged one of the foundations of democracy: the rule of law. The only
basis for a political compromise in Ukraine lies in respecting that.

So the coalition has taken a responsible decision to abide by any ruling of
the constitutional court over whether to dissolve parliament. This
represents a truly democratic and civilised way out of the current political
impasse.

I strongly believe that democracy will prevail, that the political crisis
will be resolved peacefully and that Ukraine will again be applauded by the
inter-national community for its wisdom, responsibility and maturity.
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The writer is prime minister of Ukraine
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http://www.ft.com/cms/s/dad04646-e95b-11db-a162-000b5df10621.html
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]

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2. UKRAINE: YANUKOVICH VOWS TO RESIST EARLY POLL

By Roman Olearchyk in Kiev, Financial Times

London, United Kingdom, Friday, April 13, 2007

Ukraine's prime minister, Viktor Yanukovich, has vowed to fight last

week's disputed presidential decree calling early parliamentary elections.

Writing in the Financial Times, he said: "The constitution of Ukraine
defines specific circumstances under which the president has the right to
dissolve parliament and call an early election. None of these existed."

Backed by a majority of legislators, Mr Yanukovich has held firm in a
two-week constitutional standoff with President Viktor Yushchenko that has
plunged Ukraine into its worst political crisis since the Orange Revolution
of 2004.

Last week, legislators loyal to Mr Yanukovich challenged the April 2
presidential decree in the constitutional court. His government has also
ignored a presidential order demanding state funds be provided to organise
the elections.

Without government backing, Mr Yushchenko's chances of holding elections

on May 27 as originally planned are at risk. Election observers in Kiev say
preparations are behind schedule and short of funding.

Mr Yanukovich has said he would abide by the decree if it was found to be
constitutional, but legal experts in Kiev said judges handling the case were
divided on party lines and were not likely to produce a clear ruling that
would end the stalemate. The first hearings have already been put off for a
week.

With time against him, Mr Yushchenko hinted Thursday that he was open

to a compromise that could postpone the elections.

In a televised press conference on Thursday, Mr Yushchenko defended his
decision to dissolve a hostile parliament that, in his words, tried to usurp
power by "unconstitutional" means.

Mr Yanukovich showed no sign of accepting a compromise on Thursday.

Calling an early election without legal justification challenged one of the
foundations of democracy: the rule of law, he wrote. Parties in Mr
Yanukovich's coalition have vowed to boycott the elections. -30-
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3. SIDES STAND FIRM IN UKRAINE POLITICAL SHOWDOWN

By Ron Popeski, Reuters, Kiev, Ukraine, Friday, April 13, 2007

Kiev - Ukraine's antagonistic leaders said on Thursday they favoured a
compromise to resolve a standoff prompted by the President's dissolution of
parliament, but neither appeared to make immediate concessions.

President Viktor Yushchenko, swept to power by the mass protests of the 2004
Orange Revolution, dissolved the chamber and called an election for May 27
after months of sniping with his arch rival, Ukraine's Prime Minister.

Prime Minister Viktor Yanukovich and the majority backing him in parliament
have asked the Constitutional Court to rule on the legality of the
President's decree.

Ukraine watchers agree that any court ruling would only widen a rift between
the conflicting parties. Both sides have suggested that a face-saving
political deal could obviate the ruling and allow both sides to back down.

Mr. Yushchenko dissolved the chamber to stop what he said were illegal moves
to entice his allies to cross the floor and join the majority coalition. On
Thursday, he accused parliament of creating "hysteria", but vowed to stand
by a court ruling.

"I will abide by any ruling of the Constitutional Court. I am a democrat and
I respect the law," Mr. Yushchenko told a news conference.

But he added: "This is a political crisis and it is up to politicians to use
their professional skill and political mechanisms to solve this conflict. It
is improper to put a political question before the Constitutional Court." He
suggested that fresh elections were needed as a "purgatory" for all
Ukrainian political forces.

Mr. Yanukovich initially rejected the decree, but has since said he would
back simultaneous parliamentary and presidential contests.
On Thursday, he said a political deal could be a solution.

"Even if the Constitutional Court rules that the decree is unconstitutional,
an election is possible if all participants in the political process reach
an agreement in political terms," he said during talks with Lithuania's
Prime Minister.

In Brussels, a European Union envoy who met senior Ukrainian politicians on
Wednesday, said the crisis could be solved by putting off the election.

Marek Siwiec, a vice-president of the European Parliament, proposed finding
"a compromise date for any early elections, with all the parties of the
conflict. This would be better than to keep May 27, which is not realistic
at all." Mr. Siwiec on Wednesday said it was too early to involve European
Union institutions in the crisis.

Supporters and opponents of the president's decree pressed on with protests
in central Kiev, but these have been relatively small. Attempts to recreate
the atmosphere of the 2004 "orange" protests have largely gone flat.

Mr. Yushchenko defeated Mr. Yanukovich in a re-run of a 2004 election after
weeks of upheaval against a blatant attempt to initially declare the latter
the winner. The two men hold contrasting visions of the future of ex-Soviet
Ukraine.

Mr. Yushchenko has promised to move Ukraine closer to the West, seek
long-term European Union and NATO membership and build an open, liberal
economy. Mr. Yanukovich accuses the president's allies of pitching the
economy into a tailspin and has pledged to rebuild close links with Russia
to the north.

The President reluctantly named Mr. Yanukovich Prime Minister after his
own "orange" allies scored badly in a parliamentary election barely a year
ago and failed to form a government. He has since constantly chipped away at
the president's authority. -30-
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]

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4. UKRAINE PM VOICES BACKING FOR EARLY ELECTIONS
Viktor Yanukovych signalled a major compromise, which could

lead to bringing an end to a two-week long crisis in Ukraine.

Agence France Presse (AFP), Kiev, Ukraine, Friday, April 13, 2007

KIEV - Signs of compromise appeared yesterday in Ukraine's power struggle

as Prime Minister Viktor Yanukovych signalled readiness to participate in early
elections as demanded by his political rival President Viktor Yushchenko.

In an apparent major concession, Yanukovych said he could take part in an
election even if the constitutional court, which is due to start hearings
next week, rules that Yushchenko's demand is illegitimate.

"If the court rules the decree was unconstitutional, elections are possible
if all the participants in the political process agree," he told
journalists.

The crisis, now in its second week, began when pro-Western Yushchenko
decreed the dissolution of parliament and new elections. Yanukovych's
Russian-backed allies have until now refused to comply, resulting in
constitutional paralysis.

According to Yushchenko's decree new parliamentary elections must take place
May 27, although a senior aide to the president said Wednesday that the
decree might be suspended in order to put off the election until a later
date.

Yushchenko underlined his determination Thursday, telling journalists that
he ruled out rescinding his decree. As the two sides haggled, their
supporters continued to take to the streets.

Several thousand supporters of Yanukovych gathered on the capital's main
square waving the blue flags of his Regions Party, which leads the
anti-Yushchenko coalition dominating parliament.

A few hundred Yushchenko supporters, waving the orange flags of his Our
Ukraine party, also gathered nearby. Pressure has been growing on the
constitutional court, which is due to rule on whether Yushchenko's original
April 2 decree dissolving parliament and calling new polls was legal.

Tension increased this week when the court at the last minute announced that
initial hearings would be put back until next week. Several judges,
including three Yushchenko appointees, complained of coming under political
pressure and requested bodyguards.

Yanukovych reiterated yesterday that he would respect the court's decision
in the event of a favourable ruling for Yushchenko, but his suggestion that
he could support elections even if the court declares the decree illegal
marked a sharp turn-around.

However, he did not lay out how likely it was that all other forces in
Ukraine's complex political landscape would also agree to early elections in
such circumstances.

Yanukovych's signal of flexibility followed the apparent olive branch held
out Wednesday by Vitaliy Gaiduk, a top security advisor to Yushchenko, who
said the May 27 election date, just six weeks away, was not set in stone.

During a suspension of the decree, a date for early elections would be
negotiated with parliament, ensuring that all parties, including those
currently opposed to Yushchenko, had time to campaign. -30-
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5. UKRAINE: FAREWELL TO THE CARGO CULT

OP-ED: By Mykola Rjabtschuk (Riabchuk) (Published in German)
Berliner Zeitung, No.86, Berlin, Germany, Friday, April 13, pp.25-26.
Action Ukraine Report (AUR) #827, Article 5 (Published in English)
Washington, D.C., Friday, April 13, 2007

History loves to repeat some events - but in new genres. A spectacular high
drama staged more than two years ago in Kyiv under the title 'Orange
Revolution' is mimiced today at the same place by the different actors as a
pretty boring incipid farce. Then, in 2004, it was a spontaneous mass revolt
against a large-scale falsification of the election results.

Hundreds of thousands of citizens, primarily Kyivites, came to the
Independence Square to defend their own civic rights and human dignity
rather than any particular politicians they voted for. They risked
enormously since, on the other side, there was a regime with the riot police
and the army, determined to use any means to retain the power.

Today, people are brought to the Independence Square by the authorities
themselves - to express, in an old Soviet fashion, their unanimous support
for the corrupted government and the messy parliament dissolved two weeks
ago by president Victor Yushchenko.

"They pay 40 hryvna a day and 100 hryvna a night, - confesses an elder man
from Zhytomyr camping in the Mariinsky Park next to the Parliament. - I can
make my monthly salary here within a week".

But a group of young people who observe the political show in the Maydan are
divided in their opinion. "I wouldn't have ever accepted any money from
these guys", - says Yurko, a student of Mohyla Academy. But his friend
Alexander, who lives in a student dormitory, says: "Why not? They return
back to the people the money they stole from them.

Their recruiters offer 40 hryvna for just two hours to stay here with
blue-and-white flag. I don't support Yanukovych but my stipend is 350 hryvna
and I get no extra allowance from my parents. I feel it would be actually
better if we take these money ourselves and pay them lip-service. Otherwise,
they would bring their real supporters from Donbas who may make a lot of
harm here".

The authorities obviously deny any remuneration for the protesters, but
party leaders, if pressed, recognize that some unspecified "party funds" are
used for travel expenditures and daily allowances. Yet, the very number of
the "protesters", their passivity and lack of any enthusiasm, say a lot
about the force they are driven by, and the cause they allegedly came to
fight for.

Experts muse why the anti-orange authorities try imitate the orange Maydan
in such a dull, uninventive way. And conclude that they probably still
believe that the Orange Revolution was made by money, and if they invest
more money they would get the same result. Volodymyr Shcherbyna, a
columnist of "Gazeta po-ukrayinsky", aptly called it a "Cargo Cult".

He referred to a quasi-religious cult that emerged allegedly in the Pacific
islands among the aboriginal tribes after the second world war. During the
war, aborigens witnessed American soldiers who got a lot of nice things,
called "cargo", from the sky. After Americans left, they decided to appease
the sky gods in the same way - and to get from them the same bounties.

They developed a sophisticated ritual that imitated the landing of
airplanes - with bonfires around the landing stretch cut in the jungle and
native priests with wooden headphones communicating with gods in some
incomprehensive sacral language.

Here, the gods would probably not bestow any significant mass support upon
Victor Yanukovych and his government, and even less likely they are do so
for the heavily compromised parliament.

The pseudo-Maydan is devised probably to create some TV-images for internal
and external consumption and, perhaps, to provide Yanukovych and his ruling
coalition with an extra trump card in his inevitable negotiations with
President and orange opposition.

The conflict that fuels the protests is certainly not a mere personal
quarrel between two Victors, one of whom won a highly contested presidential
elections in 2004 and the other one won a relative majority of 33% in the
subsequent parliamentary elections in 2006, and mastered eventually a highly
controversial majority in the parliament, using allegedly bribery and
blackmail.

Also, it would be just too simple to interpret the conflict as a mere
rivalry between two different oligarchic clans - "millionaires" versus
"billionaires", as some observers wittily put it during the revolution, or
even as a regional tension between the "pro-Russian east" and "pro-European
west".

Essentially, the conflict reflects the results of the "unfinished
revolution" that failed to thoroughly and coherently de-Sovietize the
country in 1991, after Ukraine's independence, and in 2004, after the orange
upheaval.

True, there were little chances for radical changes in 1991 since the
democratic forces in Ukraine were just too weak at the time - they could
barely master one third of votes in either parliamentary or presidential
elections.

But in 2004 the chances for radical changes were pretty good, and it was
primarily the ineptitude, and paltriness, and infighting of orange leaders
that caused their 2006 defeat in the parliament and comeback of Yanukovych
as the prime-minister.

Yanukovych's return, however depressing for genuine democrats, might not
have been a problem per se, if the political system was changed by that time,
and the new rules of game were established.

Actually the comeback of old men under new guises occurred in many
postcommunist countries shortly after their successful democratic turnovers
but did not lead to any revival of the authoritarian ancien regimes.

In Ukraine, however, the old men did not need to radically change their
guises and their habits since the political system remained virtually
unchanged.

Victor Yushchenko, to his credit, proved to be an honest person enough not
use the informal mechanisms of the blackmail state that he inherited from
Leonid Kuchma. But he did nothing to dismantle this mechanisms and to
replace them with workable democratic institutions based on the rule of law.

The institutional void had to be filled, and Yanukovych with his socialist
and communist allies has rapidly reestablished the mechanisms of
authoritarian power. Bribery, blackmail and intimidation became again a
usual means of solving political and economic disputes, and influencing
media and judiciary.

The "orange" president with his legitimate right of veto became the major
obstacle for the Party of Regions and Mr Yanukovych, striving to monopolize
the whole power and all the resources.

Unprecedented campaign was launched in the parliament, mostly in shadow, to
pull over the oppositional MPs to the ruling coalition and to master the
constitutional majority that would make the position of president absolutely
irrelevant.

Businessmen have been primary targets - since in the country with no rule of
law very few of them can afford being in opposition towards omnipowerful and
unscrupulous authorities.

Victor Yushchenko who had long been criticized by his allies for a too soft
character and too many compromises with Yanukovych, finally lost his
patience and signed a decree that dissolves the parliament and schedules the
early parliamentary elections in May 27.

His arguments are pretty clear: as the supreme guarantor of the
Constitution, he is obliged to stop the creeping coup d'etat and to ask the
people whether they really agree to grant the constitutional majority in the
parliament, i.e. two thirds of votes, to the "Regions", communists and
socialists.

All of them know pretty well that their electoral results would be, at best,
the same as they were last year. It means that their new majority in the
parliament is highly problematic, while their hopes for the constitutional
majority and full marginalization of the president must be buried
completely, despite enormously huge resources invested already in this
"project".

They have a lot to lose in new elections and, naturally, refuse to accept
the presidential decree. This boycott is obviously unlawful but, having the
parliament, the government, and half of Ukraine's regions under their firm
control, they would certainly not give up easily.

The negotiations between pro-presidential and pro-governmental forces would
be tough, and the compromise would difficult and painful for the both sides.
The only thing is rather clear: Ukraine would not repeat Russia's experience
of 1993 when president Yeltsyn dissolved the disobedient parliament with
tanks.

In Ukraine, neither society is eager to fight for the elites' sake nor
elites themselves are eager to risk their lucrative businesses with any
serious instability. And certainly none of them would dare to delegitimize
themselves internationally by using violence and spoiling the blood.

However immature Ukrainian society might be in terms of civility, and
however clumsily Ukrainian elites might behave, all of them seem to
recognize gradually that they live in Europe where democracy - whether you
like it or not - is the only acceptable game in town.
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NOTE: Mykola Rjabtschuk is a Ukrainian writer and journalist, the author

of Die reale und die imaginierte Ukraine, published last year by Suhrkamp.

Contact: ryabchuk@iatp.kiev.ua
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]
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6. YUSHCHENKO'S BIG GAMBLE

COMMENTARY: By Andreas Umland
The St. Petersburg Times, Issue #1262 (128)
St. Petersburg, Russia, Friday, April 13, 2007

Ukrainian President Viktor Yushchenko's recent decision to dissolve
Ukraine's parliament is a step so risky that it could threaten the integrity of

his political legacy.

Contrary to the nature of heated discussions about the constitutionality of
Yushchenko's decree, the main question about his decision is not a legal but
political one.

Yushchenko can't win the fight he's gotten himself into. Not only might the
Constitutional Court strike down the decree as unconstitutional, which would
leave his reputation fundamentally tainted, but the political conditions
Yushchenko has created provide his political opponents with an opportunity
to choose from a variety of possible counterstrategies.

Moreover, he has plunged the country into a process that could spin out of
control. Demonstrating a hubris similar to President Boris Yeltsin's in
1993, Yushchenko and his entourage seem to think that they have finally put
themselves firmly back in the saddle when, in fact, they have created a
situation that could well turn against them.

In this, the decree is only the latest instance in a series of awkward
decisions by Yushchenko's team since the Orange Revolution in 2004.

These include the disintegration of the first Orange coalition, the
embarrassing results for his Our Ukraine bloc in the 2006 parliamentary
elections, and the failure to form a functional second Orange coalition in
their aftermath.

Oddly, a major protagonist in all three of these major bungles was Petro
Poroshenko, a prominent business magnate, godfather to Yushchenko's
children, and one of the most unpopular public figures in Ukraine.

In 2005, Poroshenko drove Prime Minister Yulia Tymoshenko out of office with
his attempts to transfer governmental prerogatives to the Security Council,
which Poroshenko headed at the time.

During the parliamentary elections of early 2006, Poroshenko was one of Our
Ukraine's highest-profile members making regular - and often bizarre -
appearances on ICTV's popular political talk show "Svoboda Slova."

After Our Ukraine's poor showing in the elections, the bloc still insisted
that Poroshenko should be the speaker of the new parliament, in place of
popular Socialist Party leader Oleksandr Moroz.

Facing the dim prospects of a second Orange coalition with Tymoshenko as
prime minister and Poroshenko as speaker, the disillusioned Moroz switched
sides, and the second Orange coalition fell apart before even having formed
a government.

What Yushchenko and company are unable to accept is that, after these and
other lapses, it is natural that they have recently been losing power to
their political opponents. Like the market punishes companies when their
strategies do not fit current economic conditions, politics is a game where
it is not the "bad guys" but the less effective organizers and campaigners
who lose out.

By trying to counter their previous blunders with one grand stroke - new
elections - Yushchenko's team is making the Ukrainian state a hostage of its
own incapacity and risking the breakup of the country.

What is most important is not how the Constitutional Court assesses
Yushchenko's decree, but how the voters will react to the prospect of new
elections. What happens if the elections really do take place?

Ukraine's exceptionally low 3 percent barrier to gain representation in the
parliament creates the possibility of myriad combinations that are difficult
to foresee. The result could be an even less favorable situation for the
Orange factions in the parliament than with the current balance of forces.

The situation is reminiscent of Russia's State Duma elections in December
1993, which followed President Boris Yeltsin's dissolution of the Congress
of People's Deputies three months earlier.

It was Liberal Democratic Party leader Vladimir Zhirinovsky's triumph in
this vote that helped create the political atmosphere in Moscow leading to
the decision in December 1994 to intervene in Chechnya.

In turn, the Kremlin's unhappy Chechnya adventure, in combination with the
new 1993 Constitution, have been the two factors that have done the most to
undermine post-Soviet Russia's nascent democracy and prepared the ground
for President Vladimir Putin's tightening of control over public life.

While the situation in Ukraine is very different from that in Russia in
1993, the events that have followed Yeltsin's actions demonstrate how
miscalculated the gamble the democrats took in 1993 was and the unexpected
results that radical political steps in transition societies can often have.

In Ukraine, the political context in which Yushchenko has made this move is,
in some regards, even more complicated than that in Russia. What happens if
large numbers of voters in eastern and southern Ukraine simply boycott the
proposed elections this May? The country's western regions will surely
generate high turnout.

This makes it possible that Tymoshenko's party could come out ahead of all
others in the vote. But what would a parliament in which the majority
Russian-speaking regions are heavily underrepresented mean for the stability
of the Ukrainian state?

Crimean politicians have been for some time the most vocal critics of
Yushchenko's moves, and continuing on this path could push the Crimean
legislature toward declaring itself separate from Ukraine, and even joining
Russia.

Given these scenarios, there is the possibility that Yushchenko and his team
are merely bluffing and not really counting on new elections being held.
Even if this is the case, they are still playing with fire.

Given their record so far, you have to wonder not only whether they will be
able to play the game well, but also whether they really comprehend just how
high the stakes are. -30-
-----------------------------------------------------------------------------------------------
NOTE: Andreas Umland is a visiting lecturer at the National Taras
Shevchenko University of Kiev and editor of the book series "Soviet
and Post-Soviet Politics and Society."
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http://www.sptimesrussia.com/index.php?action_id=2&story_id=21310
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]
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7. WHY THE DEVELOPMENTS IN KIEV MATTER FOR GEORGIA
"The West is not actively engaged in the westernization of Ukraine"

INTERVIEW: With Aleksandre Rondeli, President
Georgian Foundation for Strategic and International Studies
By Maia Edilashvili, Georgian Times, Tbilisi, Georgia, Thu, Apr 12, 2007

"Russia has done its best to reverse 'Orange trends' in Ukraine," this is
how Aleksandre Rondeli, the President of the Georgian Foundation for
Strategic and International Studies interprets the political turbulence in
Ukraine.

In search of answers as to why the developments in Kiev matter for Georgia,
we interviewed Aleksandre Rondeli.

A: Ukraine is especially significant for us. It is a key country in the CIS
space, and therefore it is very important for us that Ukraine be a really
sovereign state, less dependent on Russia and a leader among those countries
which look to the west-or rather to Europe-and are not going to become
Russia's vassals. This is the reason for the Georgian people's interest in
what is going on [in Ukraine].

Sadly, the leaders of the Orange Revolution have lost dynamism and
popularity over time. The orange coalition failed to preserve their unity,
thus inflicting much damage to the values and principles set forth by the
revolution. And meanwhile, Russia has worked hard. It is not easy to find an
evidence of this.

But Russia regards Ukraine as a key country and finds it almost impossible
to see its "big" future, where Russia would be a dominant force, without
Ukraine.

For this purpose, Russia has done its best to reverse "Orange trends" in
Ukraine. You see, pro-Russian forces are making provocative claims that
Ukraine is going to split into Eastern or pro-Russian and Western or
pro-Western parts.

GT: Would it be right to conclude that the current crisis in Kiev is one
more sign of the failure of the Orange Revolution? Or do you believe
Russia's attempts could have been counterbalanced by the West?

A: Well, the West is sees Ukraine as a member of the European Union. But
this is a long-term perspective. Regretfully, the West is not actively
engaged in the westernization of Ukraine.

Significant changes- meaning the change in people's attitude in favor of
western orientation-must take place in Ukraine. The fact that NATO
membership is not in the interests of the majority of Ukrainian people will
makes the west more indifferent.

Q: Do you believe that Yushchenko missed chances to avoid deadlock, or can
we assume that this type of outcome was, let's say, predestined from the
beginning?

A: During the last period, pressure on Yushchenko had been growing, which
became evident regarding the developments around Foreign Minister [Borys]
Tarasiuk [Tarasiuk, who was one of the staunchest allies of Viktor
Yushchenko during the Orange Revolution, quit the job in January this year
following a power struggle with Prime Minister Yanukovych -GT].

Tarasiuk has been treated very dishonestly. He is a very pro-Western
politician. So the team of Yanukovych has made all efforts to put him
[Tarasiuk] off the road.

The blame for the fact that the coalition failed to [assume control of the
situation] must be put on Yulia Timoshchenko as well.

This lady, because of her ambitions, inflicted big damage on the coalition.
Some have taken advantage of this. It seems much cash has been invested by
both inside and outside forces to prevent Ukraine from choosing a western
route eventually and now we are harvesting the fruit from those mistakes in
fact.

Q: In your view, how bad might the consequences be?
A: I believe that a compromise will be found. I do not believe any armed
clash is going to happen.

Q: What would be the chances for rivals to win some seats?
A: Cynics say - the ones that are going to spend more [money]. Yushchenko is
a very balanced politician and also a true supporter of democracy [who is]
trying at the same time to retain a good relationship with Russia. But sadly
his influence does not go far.

As for the outcome of the vote, prior to the elections, the population will
be brainwashed in both a positive and a negative sense. We will see new
messages, new ideas, and new forces and finally we may even get a surprising
picture.

Though, the difference [between the votes for the rival forces] will not be
decisive, rather a slight one. But even this slight difference may alter the
political landscape inasmuch as the forces have equal powers currently. It
is hard to foresee the winner.

Regretfully, Ukrainian people prefer an egg today than a hen tomorrow. They
see that spoiling relations with Russia is unacceptable if not disastrous
for Ukraine. And I think the West is quite passive also. In the long term,
Ukraine is going to be a sovereign country and by no means a vassal of
Russia.

Q: Not in the short run?
A: In the immediate future Ukraine will be lapsing into ambiguity and
Pro-Russian and pro-Western forces will assume a leading position in turns.
In the near future we will not see Ukraine as a totally pro-Western country.
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LINK: http://www.geotimes.ge/index.php?m=home&newsid=3897
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========================================================
NOTE: Send in a letter-to-the-editor today. Let us hear from you.
========================================================
8. UKRAINE: DID WEST PULL UP STAKES TOO SOON?

By Brian Whitmore, Radio Free Europe/Radio Liberty (RFE/RL)
Prague, Czech Republic, Thursday, April 12, 207

PRAGUE - Two years ago, Viktor Yushchenko was hailed as a conquering
hero in many Western capitals.

The United States Congress, hosting the newly annointed Ukrainian president
in April 2005, welcomed his arrival with boisterous enthusiasm, chanting his
name and cheering as he thanked "the entire American nation" for its
support.

That speech, and one in Germany's Bundestag a month earlier, were part of a
post-revolutionary victory lap after the massive public protests of the
Orange Revolution propelled Yushchenko into the Ukrainian presidency -- and
reduced his Moscow-backed rival, Viktor Yanukovych, to political ignominy.

Now Yushchenko and Yanukovych are once again locking horns. This time,
however, Yanukovych is prime minister and head of the lynchpin party in
parliament's ruling coalition. And the cheers of Western support for
Yushchenko? Nowhere to be heard.

"Any political questions in Ukraine need to be resolved by the Ukraine
government," said State Department spokesman Sean McCormack, responding to
Yushchenko's dissolution of the Verkhovna Rada following the defection of
opposition lawmakers to the coalition.

And in Brussels, Adrian Severin, a member of the EU-Ukraine Parliamentary
Cooperation Committee, said this time around, Europe was putting its support
behind "values," rather than "people."

Yushchenko himself appears to acknowledge he cannot turn to the West for
support on this battle. In an interview with RFE/RL on April 11, the
president said Ukrainians must solve the current crisis "by themselves."
ORANGE LETDOWN
Some observers say many in the West have been disappointed by the inability
of the Orange Revolution leaders to capitalize on their powerful public
mandate and effectively lead the country down a new progressive path.

"The lethargy that you see, the hesitancy, or even the frustration on the
part of Brussels and Washington has to do with the degree to which the
Orange Revolution itself collapsed or disintegrated or eroded," says Robert
Legvold, a professor at New York's Columbia University who specializes in
post-Soviet politics.

"The Orange Revolution alliance quarreled so much, it didn't have the sort
of inner dynamism to create a government of its own."
Just months after the Orange Revolution, Yushchenko and his charismatic
political ally, Yuliya Tymoshenko, had been reduced to constant bickering.

By September 2005, Yushchenko removed Tymoshenko from her prime ministerial
post. That move split the pro-Western Orange forces and opened the door for
Yanukovych's political comeback and the victory of his Party of Regions in
March 2006 parliamentary elections.

After months of haggling, Yushchenko, Tymoshenko, and Socialist Party leader
Oleksandr Moroz appeared to revive the Orange forces and form a ruling
coalition that would have returned Tymoshenko to the prime ministerial post.

But in the end, Moroz defected and instead formed a coalition with Party of
Regions and the Communists. By August 2006, it was Yanukovych, and not
Tymoshenko, who was confirmed as prime minister.

"The Orange Revolution alliance quarreled so much, it didn't have the sort
of inner dynamism to create a government of its own," said Eugeniusz Smolar
of the Warsaw-based Center for International Relations, who said he watched
the months of haggling with a mixture of "sympathy and horror."

The fighting, he said, "destroyed, on the one hand, the cohesion -- and, on
the other hand, some of the support -- of the population toward the
government."
DIVIDED LOYALTY
Some analysts and politicians suggest the West could have done more to
support pro-European forces in Ukraine by expediting the country's bid to
join Western institutions like the World Trade Organization, the European
Union, and NATO.

Brussels, which acknowledges expansion fatigue, has been firm in its refusal
to bolster Ukraine's hopes of membership. But U.S. President Bush on April
10 signed legislation backing NATO membership for five countries, including
Ukraine.

The fact remains, however, that Ukraine's eastern regions remain largely
loyal to Russia, which adamantly opposes NATO expansion. As a result,
Ukraine itself is deeply divided over whether it wants to join the EU or
NATO. Some polls have indicated that most Ukrainians would reject
membership in either if the issue was put to a referendum.

"There is a quite a large group of public opinion in Ukraine that is not
terribly interested in joining the European Union, understanding that it has
an important economic, social, and cultural interest in staying close to
Russia," says Smolar.

So did the West fail, or Ukraine? "It's a complex situation," Smolar says.
"I believe that the Ukrainian public and the Ukrainian elite didn't do
enough. Whether the West could do more... I believe it could do more, but I
am not sure it could do much more."
WIDER IMPLICATIONS
Ukraine's inconstancy regarding the West may prove an inconvenience
elsewhere in the former Soviet Union -- particularly in Georgia, whose NATO
bid also got U.S. President Bush's blessing this week.

Yanukovych was once the clear villain, whose backers blatantly falsified
election results. This time around, he is the legitimate head of government
and leads the most popular party in the country.

Anti-NATO protests in Ukraine last month (TASS)Georgia kicked off the wave
of colored revolutions with its 2003 Rose Revolution, and President Mikheil
Saakashvili has traditionally kept close ties with Yushchenko.

But Legvold at Columbia University says Georgia's own Western ambitions

may be hampered by the ongoing Ukrainian stalemate.

"I don't see any prospect that Georgia can be considered for NATO
membership -- even if it seems in some fashion more qualified -- until the
Ukrainian issue is settled," he says. "You can't jump over Ukraine and
address the Georgian question separately."

Ultimately, U.S. and EU support for Yushchenko and Ukraine's pro-Western
forces may also be muted because the current composition of the Ukrainian
government is the product of elections that were universally judged to be
among the fairest and cleanest in post-Soviet Ukraine.

The Orange Revolution had a clear villain in Yanukovych, whose backers
blatantly falsified election results. This time around, he is the legitimate
head of government and leads the most popular party in the country.

Marek Siwiec, deputy chairman of the European Parliament, said on April 11
that Yushchenko can no longer expect the unequivocal Western support he
enjoyed in 2004. "All parties have a legal democratic mandate now," Siwiec
said. And that makes a "huge difference." -30-
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http://www.rferl.org/featuresarticle/2007/04/7CE4B094-ADE6-4322-9A8C-BE42355A9674.html
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]

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9. "THE CONSTITUTIONAL CRISIS IN UKRAINE: LEGAL AND
POLITICAL RAMIFICATIONS IN A COMPARATIVE CONTEXT"
Democracy is in serious danger in Ukraine right now

COMMENTS: By Judge Bohdan A. Futey
George Washington University
Washington, D.C., Wednesday, April 11, 2007
Published By Action Ukraine Report (AUR) #827, Article 9
Washington, D.C., Friday, April 13, 2007

The current legal situation in Ukraine is extremely uncertain. Back in
January, I said that it was essentially legal chaos, a sentiment that many
others have joined in. The problems began following the fraudulent
presidential run-off election in 2004, which sparked the Orange Revolution.

At that time, the Verkhovna Rada (Parliament) passed several amendments to
the Constitution on December 8, 2004, known as the political reform which
became effective January 1, 2006.

Although the political reform resolved the 2004 presidential election
crisis, it was hastily adopted and not thoroughly thought out. In addition,
because the reform was passed as a package, the Rada deputies were either
unable or unwilling to examine the effect individual provisions would have
on the operation of the government.

This was all evidenced by the considerable confusion surrounding the
formation of the majority coalition and new government following the March
2006 parliamentary election. In addition, the President's decree dissolving
Parliament on April 2, 2007 brought Ukraine to an even deeper constitutional
crisis.

The status of the political reform still remains in question. In a decision
handed down by the Constitutional Court on October 5, 2005, just prior to
the expiration of the nine year term for most of the Judges, the majority of
the Court stated that any change in the political system of Ukraine should
be submitted to and approved by a national referendum.[1] No such
referendum was ever put forward.

Although the Constitutional Court was able to render a decision on this
aspect of the political reform, the entire package was never submitted over
to the Court for consideration.

For nearly ten months after the October 5 decision, however, there was no
quorum in the Constitutional Court because Parliament refused to swear in
the President's and the Council of Judges' Constitutional Court appointees
and avoided electing its share of justices.[2]

Therefore, the Court was unable to consider the constitutionality of the
rest of the political reform before January 1, 2006, the reform's effective
date.

Many critics of the reform, including myself, [3] believe that the political
reform is a change in the political system because it converts Ukraine from
a Presidential system to a Parliamentary system and is, therefore,
unconstitutional unless submitted to a national referendum, regardless of
any other irregularities.

The Ukrainian Constitution allows Parliament to amend the Constitution in
some aspects, but the political reform steps beyond the confines of
Parliament's powers as described in the Constitution. The political reform
shifted the power to nominate cabinet members from the President to the
Rada.

Most importantly, the majority in the Verkhovna Rada now has the power to
select a candidate for Prime Minister for nomination by the President and
most other ministers, and also empowered with the right to terminate
ministers.[4]

The President, nevertheless, now appoints the ministers of Defense and
Foreign Affairs. Recently, the Rada dismissed the Minister of Foreign
Affairs, but it is unclear whether the President or the Rada has the power
to remove this person from office.

The President also nominates the Prosecutor General and the Head of the SBU
(Security Service), but must obtain the consent of the Verkhovna Rada to
hold office and to dismiss them.

On August 4, 2006, Parliament passed a bill prohibiting the Constitutional
Court from deciding on the amendments to the Constitution passed as part of
the political reform. President Yushchenko, for one reason or another,
signed the bill into law the same day.

This is clearly an attempt to prohibit the Constitutional Court from
considering the constitutionality of the political reform now that a quorum
exists.

This law is obviously unconstitutional itself. [5] As I said over a year
ago "it is inconceivable that reforms of such magnitude would be "immune"
from constitutional scrutiny."[6]

I am surprised that in order to solve the political crisis, the leadership
chose to take a step backwards from implementing a rule of law system by
passing this legislation.

Many had hoped that there would be at least forty five deputies to challenge
the law as well as the political reform, but, although the Constitutional
Court is currently deliberating on the law, no petition has been filed
challenging the political reform.[7]

The political reform and its aftermath have created legal chaos and
constitutional crisis, thus forcing the current political confrontation. In
addition, the Council of Europe criticized the reform and considers it void
ab initio and the Venice Commission called the reform a step backwards for
Ukraine.

Most recently, on December 8, 2006, at an international forum "Law and
Democracy For Ukraine", held in Kyiv, a leading group of Ukrainian lawyers
and legal scholars adopted a resolution condemning the political reform and
questioning its legality.[8]

Simply implementing the political reform has been a source of great
confusion and strife in the Ukrainian government. There was a great deal of
disagreement following the March 2006 elections regarding the effect of the
reform, particularly as to what the President's powers were in nominating
the Prime Minister.

For example, the President now has fifteen days to decide on the nomination
of the majority coalition's candidate for Prime Minister. There is no
indication in the amended provisions, however, as to what would happen if
the President does not make a decision within those fifteen days.
Furthermore, the purpose of the fifteen days is unclear.

Is it meant to give the President time to consider the Prime Minister's
qualification? Or is it time to allow the President to negotiate agreements
with factions in Parliament that will be contingent on the nomination of the
Prime Minister? This would seem to be the spirit of the law even if it is
not the letter of the law.

Additional problems have come up since the coalition government was formed.
As mentioned above, the Rada fired the Minister of Foreign Affairs, even
though many legal scholars declared it did not have that power.

The President has the power to nominate the Minister of Foreign Affairs and
the Minister of Defense in line with his responsibilities for foreign policy
and national defense as the commander-in-chief.

Therefore, according to Ivan Tymchenko, the former Chief Justice of the
Constitutional Court, it seems apparent that the Rada may only request that
the President dismiss these ministers, but that the decision is ultimately
up to the President.[9] The Rada chose to ignore the President's foreign
policy powers and, instead, dismissed the Minister of Foreign Affairs.[10]

Also, on January 12, the Rada adopted the Law on Cabinet of Ministers, which
further enlarges the power of the Cabinet of Ministers and reduces the power
of the president.

In particular, the law gives the Rada the power to appoint the ministers of
foreign affairs and defense if the president fails to do so "in a timely
manner" and deprives the president of the power to veto the Cabinet of
Ministers' action plans.[11]

Furthermore, the law states that deputy ministers are to be appointed by the
Cabinet, ministers may not appeal their dismissals in court, and the
Security and Defense Council may not influence the Cabinet's decisions.[12]

President Yushchenko vetoed the bill alleging that it was contrary to the
Constitution of Ukraine, which requires that any transfer of power between
branches of government only be implemented by a constitutional amendment.

The Rada voted to override the President's veto, but, in reality, voted a
new law. The President, therefore, had the right to use his veto powers
again because it was a different law presented to him.

In addition, who has the power to nominate and dismiss governors and who
supervises the governors is unclear and needs to be straightened out.

For example, according to the law, "the head of the oblast state
administration is appointed and dismissed by the President of Ukraine, as
proposed by the Cabinet of Ministers."[13] This provision is vague and does
not make it apparent who exactly has the power to appoint and dismiss
governors.

The law also states that "the heads of the oblast state administrations are
responsible to the President of Ukraine. At the same time, they are
controlled by the Cabinet of Ministers and must report to it."[14] There is
an obvious inconsistency here that has caused a great deal of conflict
between the President and the Cabinet of Ministers.

As one commentator stated "[t]he responsibility to the President and control
by the Cabinet puts the head of the oblast administration in a tripolar
legal relationship. Primarily, this contravenes the principle of
democracy."[15]

President Yushchenko has filed a number of cases with the Constitutional
Court in order to settle on what powers remain with the President and which
have now been transferred to the Cabinet of Ministers. Yushchenko has asked
the Court to determine the legality of the Law on the Cabinet of Ministers
and to resolve the issue of who has the authority to appoint regional
administrators.

The Cabinet of Ministers has similarly filed petitions on these topics. The
Constitutional Court, however, is overwhelmed with cases at this point and
its docket is overcrowded. It is, therefore, difficult to know when it will
be able to open and hear these cases.

In the mean time, while the bickering between the President and the Cabinet
of Ministers continues and is escalating, the chaos persists. All of these
issues came to a head last week when the President signed a decree to
dissolve parliament.

After the political reform came into effect and Yanukovych was elected Prime
Minister following the March 2006 elections, President Yushchenko had three
options open to him to resolve constitutional issues.

Soon after the elections, Yushchenko called for a roundtable discussion with
the Parliamentary leaders in order to reach an agreement on the ultimate
intention of the political reform in order to determine its proper meaning.

This seemed at least possible at the beginning of the Rada's term when the
heads of the leading parties, including Yanukovych, held discussions with
the President and signed the declaration of national unity "in order to bind
president and government to a common platform setting out coherent and
realizable goals in line with the aspirations of the Ukrainian people."[16]

Yanukovych and the Cabinet of Ministers, however, did not abide by the
declaration of national unity and instead repeatedly attempted to usurp the
President's power.

These actions as well as Yanukovych's underhanded efforts to recruit
deputies away from their political factions in contravention of the
constitution, made a political solution to the constitutional issues
impossible.

The next alternative open to the President, and one he actively pursued, was
appealing to the Constitutional Court. First the Court would have had to
consider whether the law preventing the reform from being reviewed by the
Constitutional Court, as adopted by the Rada on August 4, 2006, is
constitutional.

This issue is currently before the Court, but, as with a number of other
matters, the Court has not begun any sort of deliberations on the issues.

Because the Court seems to be at a standstill, it is not in a position to
review and determine the constitutionality of the political reform.[17] Nor
has the court begun reviewing the constitutionality of the laws passed on
the Cabinet of Ministers decreasing the power of the President.

With the Constitutional Court dragging its feet, this option was no longer
viable for Yushchenko because it is clear that the Court could not or would
not present the swift resolution necessary to resolve the growing crisis.

Yushchenko's final option was to allow the people to decide, so he issued a
decree dismissing the Rada early, before its five year term expired.
Because of Yanukovych's and the Cabinet of Ministers' actions and the
Constitutional Court's inability to render a decision on the extremely
pressing constitutional issues, this practically became the President's only
option.

Yushchenko was faced with a Cabinet of Minister passing laws that vastly
diminished the President's powers and Yanukovych threatening to gain a
supermajority of 300 votes in the Rada (which would allow him to override
presidential vetoes), both accomplished by unconstitutional means.

Particularly troubling was Yanukovych creating a supermajority in the Rada
by recruiting individual deputies from other factions because Article 83(6)
of the constitution specifically states that a coalition may only be formed
by joining political parties or blocs.

Quite simply, it appeared that the Cabinet's and Rada's aims were to curtail
the powers of the Presidency and change or ignore the Constitution when it
was not to their liking.

Therefore, Yushchenko chose to, as he said in an open letter to the
Ukrainian people, "call[] on the nation to make a responsible, conscious and
fair choice which will help end political arguments and open a new stage for
Ukraine"[18] through new elections.

Yushchenko also stated in his open letter that Yanukovych's attempts to
expand the parliamentary coalition "is a revision of the will of the
nation."[19] Under Article 81 of the constitution. a deputy must remain in
his or her party in order to retain his or her seat in parliament, otherwise
known as the "imperative mandate."

The constitutionality of this has been debated, but, there is an argument
that the people vote for the parties and their programs but not individuals.

Therefore, even if a deputy is terminated for leaving a party, it is the
will of the people that the party governs in the way it sees fit.

In addition, there is a safety valve available to the deputies because the
law does state that a deputy can vote his or her conscience even if it is
not in line with the party's vote. Yushchenko, therefore, cited the Rada
deputies flouting of the imperative mandate as a reason he issued the decree
dissolving parliament.

The imperative mandate, however, is not uncontroversial. Some have argued
that it may contravene democratic principles and is not totally in line with
European standards as laid out by the Council of Europe.

In addition, critics point to Article 81 of the constitution that compels
the deputies to serve the needs of their parties over those of the Ukrainian
people, which conflicts with the deputies' oath under Article 79.[20]

Each deputy swears to "provide for the good of the Ukrainian people" and to
carry out his or her "duties in the interest of all compatriots."

Those who oppose the imperative mandate have also expressed concern that
there may be a situation where a deputy does not believe that serving his or
her party's needs is in the interest of the people, but could lose his or
her seat in the Rada for leaving the party. Hopefully, this will also be
considered by the Constitutional Court.

Before the political reform came into effect, reforming the judiciary was a
top priority for President Yushchenko. During his inaugural address on
January 23, 2005, Yushchenko issued a mandate that Ukraine must establish

an independent judiciary and a civil society based on the rule of law.

As a direct result, on March 22, 2006, the National Committee to Strengthen
Democracy and the Rule of Law in Ukraine adopted a new Concept Paper

for the judiciary in Ukraine.

Therefore, the aim is clear, to strengthen judicial independence and the
rule of law in accordance with Ukraine's Constitution, as well as standards
approved by the European community and the rest of the free world.

In my opinion, this Concept is a valiant effort to strengthen some aspects
of court proceedings and guarantee citizens access to the courts, but as a
whole it seems to me that it fails to address the problem of reforming the
judiciary in-depth, and provides for additional ways to exercise control
over the judiciary.

Furthermore, it may be in conflict with the Constitution as enacted on June
28, 1996, it violates the principal of separation of powers (Article 6), and
the rule of law commitment (Article 8).

The idea of having government inspectors for the judiciary is not an
encouraging practice (guarantee) for judicial independence. Inspectors
looking over judge's shoulders certainly will not allow the judges to act
freely.

Also, it fails to address many aspects of the present law on the judiciary
and it undertakes to provide solutions that are not very democratic. It
barely touches on aspects of education at law schools and the role of
legal/professional organizations (like the American Bar Association in the
US).

The judiciary in Ukraine, the United States and Europe, should be somewhat
alarmed. Judges should be participants in the discussion of these issues as
they relate to Ukraine's Constitution, the Law on the Judiciary, and the Law
on the status of Judges.

Naturally, they should reserve their comments strictly to the relationship
of the proposed Concept on judicial independence, the Constitution of
Ukraine and the Rule of Law. Judicial independence does not mean the
judges do as they choose, but do as they must in accordance with the
Constitution and laws of the country.

The ABA-CEELI evaluated the Ukrainian judiciary and issued a report finding
that it did not meet the standards necessary for a democratic nation
following the rule of law. This report, the Judicial Reform Index for
Ukraine, assesses how the conditions related to judicial reform and judicial
independence in Ukraine correlate with fundamental international standards
in this area.

The judiciary is analyzed through a prism of 30 factors covering areas such
as judicial qualification and education, judicial powers, financial
resources, structural safeguards, accountability and transparency, and
efficiency of the judicial system. Unfortunately, the results illustrate
that Ukraine scored positively only on four of these factors.

On the other hand, 15 factors received a negative correlation, including
most factors related to lack of independence in the judicial decision-making
and external interference in other aspects of the work of the judiciary,
dire financial conditions of the courts, and lack of transparency of court
proceedings and documents.

Judicial independence in the final analysis will depend largely on the
conscience and courage of the judges themselves. Judges will not be
respected until they respect themselves.

The question remains whether democracy will survive in Ukraine. Now, more
than ever, the Constitutional Court must act and the Prime Minister, the
President, and the Rada will have to respect and adhere to the decisions of
the Constitutional Court regarding the dissolution of the Rada, the
interpretation of the political reform, and the powers of each branch of
government. If not, the country will sink even deeper into legal chaos.

Although I have hope that the rule of law will persevere in Ukraine, there
have been many questionable actions by most of the leadership on all sides
regarding political influence on the judiciary [21] that may threaten the
country's democratic future.[22]

In order for democracy and the rule of law to continue the Constitution and
the checks and balances contained therein must remain in full effect.

Democracy is in serious danger in Ukraine right now and it will take a great
deal of work and mutual respect between every branch of government,
particularly the Rada and the judiciary in order for Ukraine to remain
democratic.
-----------------------------------------------------------------------------------------------
NOTE: Bohdan A. Futey is a Judge on the U.S. Court of Federal Claims

in Washington, DC, appointed by President Ronald Reagan in May 1987.

Judge Futey has been active in various Rule of Law and Democratization

Programs in Ukraine since 1991. He served as an advisor to the Working

Group on Ukraine's Constitution, adopted June 28, 1996.
----------------------------------------------------------------------------------------------
FOOTNOTES:
[1] People's Authority to Amend Constitution, decision by the Constitutional
Court, October 5, 2005.
[2] Article 46 of the Law on the Constitutional Court provides that the
initiation of proceedings on a constitutional appeal or constitutional
petition shall be approved by either the Constitutional Court itself or the
Collegia of Judges of the Constitutional Court (Collegia), which is
established especially for this purpose by Article 47. The provisions
governing the initiation of proceedings provide, in pertinent part, that
either of the above-mentioned entities may vote in favor or against
exercising jurisdiction over the case. Under Article 50 of the law, a
meeting of the Constitutional Court pertaining to acceptance of a case is
considered valid, i.e., a quorum exists, if no fewer than eleven judges
participate in the meeting. In order to initiate proceedings on a case, at
least six of the eleven judges must vote in favor of such a decision.
[3] Bohdan A. Futey, "Crisis in the Constitutional Court of Ukraine: A
Court Without Judges?" August 18, 2005.
[4] Oleg Varfolomeyev, Yushchenko Challenges Constitutional Reform, Eurasia
Daily Monitor, Volume 3, Issue 1, Jan. 3, 2006. There is an ongoing dispute
as to whether the Rada may dismiss ministers appointed by the President.
[5] The law violates Article 8 of the Constitution, which
guarantees individuals the right to appeal issues of constitutional rights
and freedoms, and Article 147, which gives the Constitutional Court
jurisdiction over all "issues of conformity of laws" with the Constitution.
This law is also unconstitutional because it abridges the Rada deputies'
right to bring an appeal challenging the political reform in violation of
Article 150. Even if the Rada would have attempted to pass the law as a
constitutional amendment, such an amendment would not have passed muster
under Article 157, which prohibits the constitution from being amended in
such a way that it takes away rights of the people.
[6] Futey, "Crisis in the Constitutional Court"
[7] Yulia Tymoshenko has stated that her bloc would challenge the reform in
the Constitutional Court.
[8] Program of International Forum "Law and Democracy For Ukraine", Kyiv,
Ukraine, December 8, 2006.
[9] UNIAN: Interview with Ivan Tymchenko, December 11, 2006.
[10] The Minister filed a suit with a court of general jurisdiction,
claiming that the proper procedures for dismissal were not followed. The
court agreed with him and re-instated him to his post, a decision that Rada
has not accepted. The Cabinet of Ministers also refused to admit the
Minister of Foreign Affairs into its sessions.
[11] Pavel Korduban, Yushchenko, Yanukovych Lock Horns Over Cabinet

Law, Eurasia Daily Monitor, Volume 4, Issue 29, February 9, 2007.
[12] Id.
[13] Thomas Wuertenberger, Petro Morgos & Ralf-Peter Schenke, Some

Thoughts On Constitutional Reform For Decentralisation In Ukraine,

Ukrainian Times, August 2, 2006.
[14] Id.
[15] Id.
[16] Viktor Yushchenko, Ukraine's Crisis Need A Firm Response,

Financial Times, April 4, 2007.
[17] Under Article 150 of the Constitution, the President or no less than
forty-five Rada deputies may file an appeal with the Constitutional Court.
[18] President Dissolves Parliament, Official Website of President of
Ukraine, http://www.president.gov.ua/en/news/data/1_14702.html.
[19] Id.
[20] Article 79 reads: "I swear allegiance to Ukraine. I commit myself with
all my deeds to protect the sovereignty and independence of Ukraine, to
provide for the good of the Motherland and for the welfare of the Ukrainian
people. I swear to abide by the Constitution of Ukraine and the laws of
Ukraine, to carry out my duties in the interests of all compatriots."
[21] A decision by the Supreme Court on the re-instatement of the governor
of Kyiv oblast continues to be ignored by President Yushchenko. On the
other side, members of the Rada have made threats against judges of Pechersk
Regional Court that they will be dismissed for declaring that the attempt to
bring back the old 2004 CEC membership was illegal.
[22] On April 10, 2007 Justice Petro Stesyuk stated during a press
conference that five members of the Constitutional Court feel that they are
under political pressure to resolve this case without procedural safeguards
and that they "threaten to affect an independent conduct by the Court of its
constitutional duties, democracy in Ukraine and constitutional rights and
freedoms of citizens." Open Letter from Justices Lilak, Kampo, Stetsyuk,
Shyshkin, and Machuzhak to the Ukrainian people, President of Ukraine, Rada
deputies, and Judges of Ukraine, April 10, 2007. It is, therefore,
questionable whether the Constitutional Court will be able to act at all.
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[return to index] [Action Ukraine Report (AUR) Monitoring Service]
========================================================
10. A FEW WORDS ABOUT RESPECT FOR THE CONSTITUTION

Victor Musiaka. Professor, Kyiv Mohyla Academy
Verkhovna Rada deputy of the Second and Fourth Convocations
Mirror-Weekly, Dzerkalo Tyzhnya On The Web, No 13 (642)
International Social Political Weekly, Kyiv, Ukraine, Sat 7-13 April 2007

The April 2 presidential decree "On the Early Dissolution of the Ukrainian
Verkhovna Rada" has come as a culmination of a bitter standoff between the
head of state (along with the opposition political forces supporting him
within and outside parliament) and the ruling parliamentary-government
coalition.

The standoff has its roots in key provisions of the country's Fundamental
Law that had set down the foundation for power-sharing between various
branches of the government.

Warring parties had taken different approaches to the content,
interpretation and application of these provisions, leading up to this
constitutional conflict, which has now become a crisis in which not only
representatives of the legislative, executive and judicial branches of
government are involved but also dozens of political parties, hundreds of
public organizations, and thousands of ordinary people.

It is the first time in Ukraine's contemporary history that the
constitutional provision on the early dissolution of parliament has been
applied.

For this reason, the text of the presidential order has - from the very
first minutes after it was made public - been scrutinized by legal experts,
political analysts and average citizens. Which grounds did President
Yushchenko offer for this truly crucial decision for the country's destiny?

In the preamble to this document we read that the key ground for dissolving
the parliament was a violation by the Verkhovna Rada's majority coalition of
the constitutional norms concerning the formation of a coalition in
parliament, which say that only factions, not individual deputies or small
groups of deputies, can make up a coalition.

In particular, the preamble to the decree states that ".there has been a
transition from isolated cases of deputies crossing over into the majority
coalition to cases of the coalition being expanded by massive additions of
individual deputies or groups of deputies", which the President believes to
be a crude violation of constitutional Article 83.

The violation of the Constitution as identified by the President has, as he
believes, resulted in the following:

1) Misrepresentation of the people's will as expressed during the most
recent elections;
2) Abuse of citizens' election rights given to them by the constitution;
3) Abuse of the constitutional principle of people's sovereignty;
4) The emergence of a fertile soil for power usurpation;
5) The emergence of a threat to national security;
6) Destabilization of the country's political situation;
7) The emergence of a potential threat to the state's sovereignty.

Referring to Clause 2 of constitutional Article 102, the President
emphasized his status as guardian of the state's sovereignty and territorial
integrity, as well as his wish for compliance with the Constitution and with
civil and human rights and freedoms.

This constitutional status, in the President's opinion, obliges him to
dissolve the parliament before the expiration of its mandate, as he has no
other legal instruments left to prevent the Constitution from being crudely
violated by the Verkhovna Rada.

The President ordered the dissolution of the Verkhovna Rada based on a
number of constitutional articles, which it would make sense to consider
here in detail, notably in the context of the consequences mentioned above.

[1] FIRST, let us enlarge here on the procedures for the formation of a
parliamentary coalition as defined by Clause 6 Article 83 in the
Constitution. I believe that the interpretation of the above-mentioned
procedures for the formation of a coalition as offered by the President is
much too restrictive.

First of all, the mechanism in question was originally provided for in the
Constitution to support the 'absolute imperative mandate', under which a
majority coalition could only be put together by factions, not by individual
deputies, and where the deputies must belong to the political party that
brought them to parliament.

Violations of the 'imperative mandate' principle would lead to deputies
being stripped of their mandate if: a) they did not join the faction of the
political party they belonged to during the election; b) they defected from
the faction of the political party they entered under; or c) they were
expelled from their respective factions.

For well-known reasons, a clause on "expelling from factions" as a ground
for stripping a deputy of his/her mandate before the expiration of its term
was not included into constitutional Article 81.

A legal declaration, not excepting the constitutional one, tends to live a
life of its own, independently of its author. I have had the experience of
formulating some constitutional provisions whose original meaning was a far
cry from their later interpretation by the Constitutional Court.

There is therefore every reason to suggest that a deputy expelled from
his/her faction, after becoming 'unaffiliated', could well join the
already-existing parliamentary coalition individually, which does not run
counter to Clause 6 of constitutional Article 83.

It is therefore evident that this circumstance has nothing to do with the
case where a deputy is allied with opposition factions and then joins the
majority coalition, as this scenario is not banned by the Constitution.

It is important to note that this is about a 'coalition of parliamentary
factions containing a majority of the constitutional make-up of the
Verkhovna Rada of Ukraine'. In other words, the 'majority' term relates to
the parliamentary coalition, not the factions making it.

It is not quite clear what the President meant by referring to "membership
[in the coalition of] the groups of deputies". Perhaps he meant the joining
of the coalition by [the head of the Industrialists and Entrepreneurs Party
and formerly part of the Our Ukraine election bloc Anatoliy] Kinakh and his
men, which served as the final argument for President Yushchenko to disband
the parliament and call early elections.

[2] SECOND, the resulting conclusion by the author of the decree is not that
apparent if you consider the facts and circumstances the head of state
believes have resulted from violations of constitutional procedures for the
formation of a majority coalition in parliament.

Let us begin with the President's presumption that when deputies expelled
from their respective factions joined the coalition, it effectively
"distorted the people's will they expressed during the parliamentary
elections". This presumption seems far-fetched, as deputies might well be
expelled as a result of their factions' programming guidelines being
changed.

One should also understand the specific nature of the 'imperative mandate'
principle as it is understood here in Ukraine: A deputy does not answer to
the voters, but to the head of his/her respective faction.

Furthermore, it is no secret that some of the factions had been put together
based on principles other than ideological ones.
Therefore, attempting to shift to the coalition the responsibility for party
ticket formulation seems absolutely groundless.

Voters should be provided with full information about why deputies switch
sides, because this is precisely what underlies legislators' political
responsibility to voters during following elections.

What's more, the President does not give any explanation for his position
concerning the relationship between the coalition's expansion by the
addition of deputies from other factions and possible interpretation of this
circumstance in the light of clauses 2 and 3 of constitutional Article 5.

It is not clear either how this can violate the principle of people's
sovereignty, and which constitutional provisions the parliamentary coalition
violated by accepting deputies expelled from other factions.

I can see some elements of unlawful seizure of power by the coalition after
voting on the Cabinet of Ministers Bill, some of whose provisions do
infringe upon the President's vested constitutional rights.

But the fact is that the presidential veto of the bill was overridden by
votes of not only the coalition but one opposition faction as well, from
which it does not at all follow that all the deputies who helped override
the veto are potential defectors from their factions.

It would be pertinent to recall here that about 30 percent of the voters had
supported political forces other than those who finally got into parliament,
their votes being shared in proportion to the size of the five political
parties that passed the 3-percent barrier required to enter the legislature.
Can this be considered a distortion of the voters' will? Maybe it can, but a
distortion of this kind is a legal one.

Furthermore, the President should have explained in clearer terms what he
meant by alleging that expansion of the coalition "contributes to the
destabilization of the situation in our country", "poses threats to national
security", and "creates a potential (!) threat to state sovereignty".
Conclusions like these should have been substantiated by more weighty
arguments.

After scrutinizing the text of the presidential decree issued on April 2,
one can inevitably infer that this order effectively violates one of the
basic principles of government activities as set down in Clause 2 Article 19
of the Constitution, which says: "Government agencies, local self-governing
bodies and respective officials must act within the scope of powers allotted
to them by using the instruments provided for by the Constitution and laws
of Ukraine".

The power to strip parliament of its mandate before the expiration of its
term, provided for by Clause 8 Article 107 of the Constitution, cannot be
applied other than on the grounds and according to the procedures as defined
by Article 90 in the Constitution.

But there is no reference to this constitutional article in the presidential
decree, as it proved to be highly problematic for the authors of the
document to identify any feasible arguments to "tie" the content of the
decree to this constitutional requirement.

So they resorted to the long-tested method and referred to the "spirit" of
the Constitution as an additional argument and support of their ill-grounded
decision.

Using approaches like that can be acceptable, indeed, but not in cases where
the Constitution describes in clear terms the circumstances under which the
legislature can be dissolved before its term expires.

The decree refers to the President's vested power to relieve deputies of
their mandate as his 'obligation', whereby you can find not a single word in
the Fundamental Law speaking about this presidential authority in terms of
'obligation'.

Still further, as an additional argument in support of this decision the
decree points to the fact that ".the President has had no other legal
instruments left to prevent crude violations of the Constitution".

This clause was authored by Yushchenko himself. But the document does not
answer the question as to which other legal instruments the President had
used to prevent the Constitution from being crudely violated.

By issuing this decree the President aimed not to put an end to power
usurpation but to eliminate emerging pre-conditions for the usurpation of
power.

An attempt to "voluntarily" terminate activities that could be viewed as
"pre-conditions for the usurpation of power" was made by the Verkhovna Rada
at its April 2 session, when it adopted Resolution No. 837-V to suspend some
provisions in the Rada's procedural code that allow unaffiliated deputies to
join the majority coalition.

There is one more clause in the operative part of the decree that cannot
fail to escape notice. This is to ".recommend that the people's deputies of
Ukraine continue executing those powers that are not directly associated
with the powers of the Verkhovna Rada of Ukraine" (Clause 2).

What could that mean? It turned out that the President was convinced by
somebody that the legislature would "cease to exist" when this presidential
decree came into force.

The guardian of the Constitution reserved for the people's deputies the
right to execute their powers while simultaneously banning them from coming
together in the session hall for plenary sessions and decision-making by
voting. However, one of the deputy heads of the President's office told
lawmakers that their status is no longer valid.

I in person view this as a clear demonstration of ignorance of the law, in
that this is about a parliament and, furthermore, one of a European state.
How can one so easily manipulate using categories underlying the entire
state system?

Early dissolution of the Verkhovna Rada does not immediately terminate its
activities. According to Clause 1 Article 90, "The powers of the Verkhovna
Rada of Ukraine will terminate on the day when the subsequent sitting of the
Verkhovna Rada of Ukraine convenes for its inaugural meeting".

What is new here is a provision that does not discriminate people's deputies
elected during scheduled elections from those who got into parliament as a
result of early elections, which complies either with the letter or spirit
of the Fundamental Law.

Its Article 81 describes in clear-cut terms the conditions under which a
people's deputy's powers may be terminated: "Powers of a people's deputy of
Ukraine will be terminated ahead of time also in the case of early
termination, in accordance with the constitutional procedures, of the
mandate of the Verkhovna Rada of Ukraine, which takes place on the opening
day's inaugural meeting of a new Verkhovna Rada".

This is what clearly follows from the Constitution, which says that a
government, if fired as a result of a no-confidence vote, will remain in a
care-taker capacity pending the formation of a new government. In the
President's case, if he resigns or is impeached, his powers will be executed
by other persons.

Any state by definition cannot exist even a single day in absence of an
effective parliament, as this representative agency of State power must
permanently stand ready to execute its duties, such, for example, as
appointment to or dismissal from office, on a motion from the President, of
the Chairman of the Security Service of Ukraine (SBU); confirmation of a
presidential nominee for the post of the Prosecutor General; approval of
presidential decrees declaring a war situation or a civil emergency no
later than two days after said decrees arrive to parliament, etc.

Terminating parliament's powers while simultaneously issuing a presidential
decree on the early dissolution of the Verkhovna Rada may set the conditions
for an unlawful seizure of power by any government agency or group of
officials.

At the same time, one cannot fail to see that quite a number of regulatory
acts and statements adopted by the Verkhovna Rada and the Cabinet of
Ministers in response to the presidential decree don't hold water. These
documents deserve to be scrutinized in a separate article. But one cannot
fail to see the most notorious violations in them.

Having declared the presidential decree unconstitutional, the Verkhovna Rada
went beyond its jurisdiction by taking over the powers that can only belong
to the Constitutional Court.

Nt abiding by the presidential order runs counter to the letter of the
Constitution as well. Statements by the Prime Minister that he would not bow
to the presidential order before its validity is confirmed by the
Constitutional Court are all demonstrations either of ignorance of the law
or legal nihilism, as the order remains legally binding until declared
unconstitutional by the Constitutional Court.

The supreme legislative body can give its assent to presidential decrees but
it cannot interpret them. An attempt by the Verkhovna Rada to "adjust" its
actions to suit the provisions of constitutional Article 60 was awkward
enough. Article 60 says that ".nobody is obliged to abide by apparently
criminal directives or orders", but it makes no mention of presidential
decrees.

To decide whether these can be identified with 'directives or orders' is up
to the Constitutional Court. Pointing to provisions of Article 60, some
lawmakers have effectively accused the President of issuing an "apparently
criminal order" without having enough grounds for this, thereby contributing
to the already tense stand-off.

Equally inconsistent from the legal perspective is the Verkhovna Rada
resolution changing the make-up of the Central Election Commission. By so
doing the parliament violated the procedures set down by the Constitution
and the Law "On the Central Election Commission".

The author of this article, for the first time in the past few years,
welcomed the decision by the Pechersk District Court in Kyiv declaring this
resolution invalid.

At this point, the situation appears to be dead-locked. The presidential
decree remains valid until the Constitutional Court declares it to be
unconstitutional. The Constitutional Court ruling may come in a week, or in
one or two months. In formal terms, the early election campaign has got
underway.

Opposition parties are ready to run, and the political forces represented in
parliament's majority coalition are refusing to participate.

Ukraine has had no experience of conducting early parliamentary elections
yet. Meanwhile, major inadequacies in related legislation have been found
out that can bring about serious violations of citizens' election rights and
liberties.

It is absolutely critical today to search for a way out of the situation
that would be acceptable to both of the rival parties and, most importantly,
to the rest of society.

It is obvious that the parties currently in power will not be able to
effectively work together during their five-year term, and early elections
therefore look inevitable. But holding such elections in 'field conditions'
is absolutely unacceptable, if the State is to be considered the bearer of
the rule-of-law principle.

For resolving the crisis I dare to propose the following measures.

FIRST, it is necessary to restore the status quo (as it was prior to the
presidential decree), with the parliamentary coalition terminating the
activities that provoked such a reaction from the President.

SECOND, a mixed constitutional commission should be set up to draw up and
submit for approval by this June the draft changes and amendments to the
Constitution needed to bring about completion of the constitutional reform.
During this joint work, all known differences over the constitutional reform
should be eliminated or compromised on.

THIRD, the draft changes and amendments to the Constitution should be ready
for a preliminary approval at this session of Parliament, and approved in a
final vote during the next session.

In parallel with this, the effective electoral laws should be reconsidered
and amended with an eye to eliminating all the existing inadequacies in the
current election system.

FOURTH and most important, interim provisions of the Constitution should
foresee the transition of all central and regional government authorities
into a new constitutional foundation by renewing their respective powers. In
other words, it is necessary to hold early elections within the timeframes
as proposed here:

[1] To local self-government bodies - in December 2007;
[2] To the Verkhovna Rada of Ukraine - in March 2008;
[3] Presidential elections - in June 2008.

Other scenarios are possible, indeed, but what is sure is that the
authorities should end the current feud and begin to work within a normal
well-regulated legal environment.

In a democratic civilized society, any actions by the authorities are
restricted by law and the honesty of the powers that be. Can you find in
this formula anything in common with the current Ukrainian authorities?

Maybe it's time to give thought to the criteria for the authorities to abide
by. To this end we should start searching for ways to make the authorities
come back to the values of the law and morality. -30-
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LINK: http://www.mirror-weekly.com/ie/show/642/56348/

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[return to index] [Action Ukraine Report (AUR) Monitoring Service]
========================================================

11. UKRAINE'S DEMOCRATIC CHOICE

COMMENTARY: By Yulia Tymoshenko
Daily Times, Lahore, Pakistan, Monday, April 9, 2007

Suddenly, Ukraine faces another stark choice: dismiss the government and
parliament and hold new elections, or see the country's independence
surrendered bit by bit.

There is renewed talk, too, of violent civil unrest. None of this should be
surprising, given how our corrupt rulers systematically incite regional and
ethnic hatred.

Some say that President Viktor Yushchenko's decision this week to dismiss
Prime Minister Viktor Yanukovych's government was unwarranted.

They are wrong: Yushchenko's actions were necessary because the
Yanukovych government, in clear violation of the law, was preparing to
mount a constitutional coup that would have stripped the president of his
remaining supervisory powers over the army and police.

Either the president acted now, or Ukraine would return to the absolute rule
of criminal clans that existed before our Orange Revolution in 2004.

I did not agree with Yushchenko's decision to appoint Yanukovych prime
minister following last year's parliamentary election. For a
democratic-minded president to co-habit (as the French call it) with the
very man who sought to sabotage Ukraine's last presidential ballot would, I
knew, provoke institutional paralysis and political chaos. And so it has

But the ultimate shortcoming of that cohabitation was its curtailment of the
democratic process. Ukraine's democrats, who won that election, were
denied their voice and their place in government.

Yushchenko offered his hand to his foes in good faith so as to bind up our
nation's wounds; in return, the governing pact that he reached with
Yanukovych was betrayed at every turn. A new election will restore
democratic choice - and thus revitalise our democracy.

Europe and the world are, of course, right to worry. But Ukraine has changed
dramatically since the Orange Revolution. Even those Europeans who believe -
wrongly - that democracy does not easily take root in post-Soviet countries
should recognise that our people now feel empowered.

A country that emerged so recently from one period of dictatorship is
unlikely to volunteer for another at the hands of a man who sought to
falsify the presidential election of 2004.

Economic growth since the Orange Revolution reinforces that reluctance,
because an expanding middle class nearly always prefers the flexibility of
pluralism to the thump of an authoritarian's fist. The general election
called for May 27 will help to keep things this way.

But the dangers that Ukraine faces are serious, stemming from problems -
particularly fragile institutions and economic dislocation - that are common
to every young post-communist democracy, as well as from some special
problems of its own.

Many of Ukraine's richest citizens, who gained their wealth through the
crony capitalism that is the only way Yanukovych knows how to govern, remain
unreconciled to Ukraine's democracy. For them, manufactured discontent in
Ukraine's

Russian-speaking regions - which have embraced a centrifugal tendency
greater than in any other European democracy - impels them toward the system
of managed democracy found in Russia in order to protect their continued
misrule.

A decade ago, the world had a foretaste of what can happen when ethnic
divisions are exploited for sinister political purposes. Yugoslavia is but a
miniature version of what might happen in Ukraine if Yanukovych's tactics
are allowed to bring ethnic antagonisms to the boiling point.

Ukraine's unity, however, is not artificial. It is natural, as is
demonstrated by the huge majority - even among the Russian minority - that
continues to support the country's independence. So it would be wrong to
say that the democratic centre cannot hold in Ukraine.

The best and still most living thing about our Orange Revolution was the
democratic empowerment of our people. As a result, something remarkable for
a former Soviet country informs the habits of those who are demanding that
their liberties be preserved: a deep respect for the rule of law, which is
the ultimate check on abuse of power.

Our people understand that the Yanukovych government is not just political
poison. It seeks to dominate, and deaden, the whole economy, too. No
business can be conducted without kowtowing to the regime for permission.

Ukraine's neighbours should now help us by offering support and hope.
Europe must send a clear signal that Ukraine, unlike Czechoslovakia to
Neville Chamberlain in 1938, is not some faraway place of which it knows

little, but rather an integral part of the European project.

After all, the European Union is first and foremost a community of
democracies: if Ukraine can aspire to membership, any oligarch or criminal
politician who undermines that prospect will have to face the ire of all
Ukrainians.

Moreover, all of Europe needs a truly democratic Ukraine. New elections to
secure our democracy are the only way forward, both for us and for advancing
Europe's interest in seeing that genuine democracy takes root in the nations
of the former Soviet Union. -30-

--------------------------------------------------------------------------------------------------
NOTE: Yuliya Tymoshenko, Ukraine’s former Prime Minister, is leader

of the parliamentary opposition.

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[return to index] [Action Ukraine Report (AUR) Monitoring Service]
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12. MOROZ THREATENS TO BRING CC JUDGES TO ACCOUNT

Ukrayinska Pravda, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Action Ukraine Report (AUR) #827, Article 12, (in English)

Washington, D.C., Friday, April 13, 2007

KYIV - VR Speaker Oleksandr Moroz said the ruling coalition might sack

the five judges of the Constitutional Court who refused to take part in CC

hearings to analyze the validity of Yushchenko's decree dissolving VR.

Moroz told this to journalists who asked him whether the refusal of the 5
judges would entail any accountability. "We may have hearings on the issue
in VR", Moroz confirmed, saying, however, the issue has not been raised. "I
cannot predict the results of the likely hearings," Moroz added.

According to Moroz, the prospect of accountability "will be useful to
judges," since they must be aware of their responsibility for resolving the
present crisis. Moroz warned that any procrastination with the examination
by CC of Yushchenko's decree would be intolerable, saying "this is not a
theater where one can have as many pauses as one wishes." Besides, the
speaker stressed that the 5 CC judges "have found an excuse to sit on the
fence."

On Apr. 10, five judges of the Constitutional Court went on television to
decry pressure and threats of physical violence by some political circles,
refusing therefore to take part in CC hearings on the validity of Yushchenko
decree dissolving VR.

On Wednesday, Apr. 11, head of VR committee on judiciary and Regions

member Serhy Kivalov said CC judges can be fired only by VR in

compliance with the Constitution and the law on the CC.

The CC is made up of 18 members. Of the 5 defiant judges, Yushchenko
nominated three (Viktor Shyshkyn, Volodymyr Kampo, and Dmytro Lylak), VR -
one (Petro Stetsiuk), and the Council of Judges - one (Yaroslava Machuzhak).
---------------------------------------------------------------------------------------------------

Link: http://www.pravda.com.ua/news/2007/4/11/57288.htm)
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Send in a letter-to-the-editor today. Let us hear from you.
========================================================
13. OUR UKRAINE THREATENS PROSECUTION TO CC JUDGE

Ukrayinska Pravda, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Action Ukraine Report (AUR) #827, Article 13, (In English)

Washington, D.C., Friday, April 13, 2007

KYIV - Our Ukraine is going to appeal to the prosecution and Secret Service

unless Constitutional Court Judge Susanna Stanik dispels the allegations of
receiving two apartments in downtown Kyiv as a bribe. Susana Stanik is to
report to the CC on Yushchenko's decree dissolving Verkhovna Rada, UNIAN
press agency quotes OU lawmaker Ruslan Knyazevych as saying in a press
conference.

According to Knyazevych, the allegation was reported on Thursday morning by
Realna polityka Internet publication, saying the apartments were located at
6 Nesterivsky provulok.

The report also tells about the earlier contacts which, according to Realna
polityka, took place between Deputy Cabinet Minister Olena Lukash and CC
Deputy Chief Justice Susana Stanik.

"On March 28, 2007, public notary Sotnykova attested a feofment contract
under which Oksana Fedorivna Antonenko gave a gift to Susana Stanik of two
apartments (#27 and 28) at 6 Nesterivsky provulok.

Realtors estimate the cost of both apartments at $2 mn," Knyazevych
stressed, quoting information released by Realna polityka. He demonstrated
an alleged decoded conversation between Stanik and Lukash contained in the
publication report.

According to Knyazevych, Our Ukraine does not believe the allegations are
true. However, considering that the CC is increasingly getting in the public
eye, OU has requested S. Stanik to take the case to court and thus dispel
the allegations.

If S. Stanik fails to do so, Our Ukraine "will be forced to appeal to the
prosecution and SBU. If the allegations are true, this will cast doubt on S.
Stanik's actions and professional performance," Ruslan Knyazevych stressed.

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LINK: http://www.pravda.com.ua/news/2007/4/12/57340.htm)

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14. REGIONS BLOW WHISTLE ON YUSHCHENKO TO
PROSECUTION FOR ENFORCING PROTECTION TO CC JUDGES

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LINK: http://www.pravda.com.ua/news/2007/4/12/57353.htm
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15. MOROZ: CC JUDGES REQUEST CHIEF JUSTICE TO START
HEARINGS ON YUSHCHENKO DECREE VALIDITY APRIL 13

5 Kanal TV, Kyiv, Ukraine, Thu, April 12, 2007 (in Ukrainian)

Yushchenko's decree illegal, Moroz opined, the status quo must be

restored, and the politicians should return to the table of negotiations again.

If the CC renders the decree legal, the parties will have to compete in the
early elections. In this case, Moroz stressed, the parliamentary elections
must be held together with the presidential election.

Interestingly, the speaker did not rule out a flawed verdict by the CC,
saying "We've had an example when the CC ruled that [Kuchma] did only

one term as president, not two, as the case had been. These things happen.
Lawyers sometimes have problems with maths," Moroz said sarcastically.
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LINK: http://5tv.com.ua/newsline/266//39605/)
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16. "PARADOXICAL REGION" WHAT CAN DONETSK REGION GAIN
FROM EUROINTEGRATION? POLAND'S EX-PRESIDENT KWASNIEWSKI

By Hanna KHRYPUNKOVA, The Day
The Day Weekly Digest #11, Kyiv, Ukraine, Tue, 3 April 2007

"Ukrainians are Europeans!" These words of Poland's ex-president Alexander
Kwasniewski, who is one of the EU's leading politicians, was a constant
refrain in his discussion with students and lecturers of Donbas higher
educational establishments, which took place in Donetsk last week.

The meeting was held within the framework of the European Debate Forum
organized by the Yalta European Strategy, and was just one of the stops on
the Polish politician's visit to various Ukrainian cities.

In each of them the politician talked primarily with the student elite:
Kwasniewski thinks it is the younger generation that will decide the
country's
future and that it is young people who should assess all the prospects and
possibilities of Eurointegration.

Donetsk was the last city on Kwasniewski's itinerary, which included Lviv
and Dnipropetrovsk. According to the politician, the miners' capital was
especially interesting for him.

In the context of Eurointegration Donbas is a "region of paradoxes,"
according to the Polish politician. On the one hand, the level of distrust
toward the European Union is at a maximum high; on the other, this region
will profit most when Eurointegration finally takes place.

Kwasniewski told The Day's reporter that Europe is the "main helper of
industrial development in the Donbas." Europe can offer this region a number
of programs that could bring its industrial potential to a qualitatively new
level.

The former president of Poland advised the Donbas to focus attention mainly
on the coal-mining industry, with which work must be conducted "seriously
and openly."

He thinks that mines are needed both in Ukraine and in Europe, but coal will
not be the chief energy source in the future, and therefore miners who may
lose their jobs should be taken care of first of all.

"Programs should be developed that will help these people to change their
profession: some will retire, and others will go to school. Ukraine is not
the first country with this problem. But there are countries that have
solved it, and we have to adopt their experience," the Polish politician
underlined.

Kwasniewski also advised his listeners to borrow from Europe's experience in
a whole range of other directions. Our country is already European, not only
geographically but also culturally, by its world outlook, values, and even
philosophy. "Ukraine is a strong place in European history.

Therefore, the European perspective is possible for Ukraine. For us, you are
an important and necessary part of the EU, and we should look at you with
respect," Kwasniewski said.

The Polish politician says that in the last decades important events within
the European context have taken place in Ukraine, including the referendum
of 1991, "when Ukraine declared that it wants to be independent."

That was the first one, and the Orange Revolution, "which was the voice of
free Ukraine's generation," was the second. Both events, in his opinion, not
only proved that the country has made a considerable move toward
integration, but also that it has enough responsibility to show itself with
dignity and not to lose face.

"You made us understand that things which will be decided in Ukraine cannot
be decided in Brussels, Paris, and never in Moscow," Kwasniewski admitted.
He says that integration into Europe does not entail the risk that any
country will lose its self-identity.

On the contrary, in understanding other values, conducting a dialogue with
other countries, it is easier to comprehend your own national values. He
thinks that Ukraine should talk more about Eurointegration today, discuss
all its aspects, "tame this animal and understand that it is not an animal
but a good and successful structure.

The ideas of the EU, of European cooperation and European dialogue have,
above all, the highest humanitarian qualities. This is not a question of
money. This is above all an understanding that in the European family we
respect ourselves and each other.

We think about how to organize compromise, not kompromat (grey propaganda).
We think about how to organize cooperation...to create a Europe that will be
many-sided because it is different in its essence," the Polish ex-president
stated.

This European politician's main recommendation for the Ukrainian government
and the Donetsk authorities is dialogue. In order to overcome the
population's distrust, it must be acquainted with Europe as much as possible.

Kwasniewski advice to the Donbas is to single out a special aspect in this
dialogue and underline the fact that Ukraine's accession to the European
Union does not mean at all that it should turn its back completely on
Russia. "Historically and practically, Ukraine will develop its relations
with Russia and the EU. The EU is simply helping other countries to develop
better and faster," he underlined.

The local authorities in the Donbas, in their turn, stated that they will
hold several consultations and discussions of this issue before imposing any
will on the population. There is a high probability that in the nearest
future the Donbas will look differently at the European Union.

However, some deputies from the Donetsk Oblast Administration, members of
the Natalia Vitrenko Bloc, already demonstrated that they are not ready for
a dialogue.

Bloc members not only organized a small anti-NATO protest in a building on
the campus of Donetsk National University, the leader of this fraction,
Natalia Bilotserkivska, was present in the hall, constantly interrupting the
guest whom she also managed to offend at the end of the discussion by
declaring that "Poland sold out to NATO."

The president responded to this insult very seriously, stressing that it is
simply intolerable for politicians to make such statements.

But he said later that he has become inured to such remarks. "I have not
taken part in such a political discussion for the last two years, but I feel
that I still have some talent for it." Be that as it may, the younger
generation's reaction should be considered the most important one, and
Kwasniewski was especially counting on it.

Oleksandr Ivanov, a student at the Philology Department of Donetsk National
University told The Day: "We have come here not just to listen to
Kwasniewski. We wanted to learn about his position. It is important for us
to hear that he is calling for a sober assessment of the politics taking
place in Europe and Ukraine.

It is high time for everyone to understand that we have a small fatherland -
the Donbas - and a big one - Ukraine. That is obvious. We don't have do
divide this notion, we have to think about the future."

Kwasniewski underlined that he is ready to continue helping Ukraine. "I have
been, I am, and will continue to be Ukraine's advocate in the world. I will
always be your best friend, but I ask you not to forfeit your historical
chances," he said at the end of his visit. -30-
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LINK: http://www.day.kiev.ua/179850/
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17. POLAND'S ECONOMIC REVOLUTIONARY

By Steven Pearlstein, Business Columnist
The Washington Post, Washington, D.C.,
Wednesday, April 11, 2007; Page D01

If Lech Walesa was the man who liberated Poland from communism,
Leszek Balcerowicz was the guy who brought capitalism back.

Like Walesa, Balcerowicz is a genuine hero -- a man of principle,
perseverance and courage who as finance minister, deputy prime minister and
head of Poland's central bank managed the turnaround of one of Europe's
poorest and most dysfunctional economies.

While his "shock therapy" for the Polish economy in the early 1990s was
risky and painful, it produced some of the strongest growth and lowest
inflation on the continent.

Though he has been driven out by Poland's new government -- a somewhat
kooky coalition of anti-communists, nationalists, populists and puritans
cobbled together by twin brothers Lech and Jaroslaw Kaczynski --

Balcerowicz can take satisfaction that the roots of economic and political

reform are now deep enough that backsliding is unlikely.

Yesterday, Balcerowicz was at the Cato Institute in Washington doing what
he likes best -- spreading the gospel of free markets and warning about the
dangers of the modern welfare state.

Unlike American free-marketeers, whose ideological zealotry is strangely at
odds with the limited government involvement in the U.S. economy,
Balcerowicz has the credibility of someone who dismantled an economy in
which government determined everything from the price of bread to the
production of steel.

Even as he outlines the intellectual arguments for deregulation,
privatization and lower taxes, his academic views are tempered by the
experience of actually running a government and mixing it up with
politicians and the public.

He exudes a delightful mix of confidence and humility that would be hard
to find in counterparts in Rome and Paris, and a refreshing candor.

As is often the case with revolutionaries, Balcerowicz today is probably
more highly regarded in Ukraine or Kazakhstan than in Poland, where he
remains divisive.

While he is celebrated by the younger and more urban financial and
entrepreneurial classes, his name draws the contempt of farmers, retirees,
civil servants and workers at inefficient state enterprises.

In the last election, it seemed that the only economic agenda put forward by
the prime minister was ousting Balcerowicz as head of the central bank.

The Kaczynskis called him out as a former communist, accused him of
corruption and criticized him for selling out the country by allowing the
merger of two Italian-owned banks. They stripped the central bank of
much of its regulatory power.

But Poland's constitutional court sided with Balcerowicz in his refusal to
appear before a special panel directed to investigate his performance -- an
important affirmation of the independence of the central bank.

And despite the campaign against him, he managed to serve his entire
seven-year term before being replaced by a Kaczynski crony earlier this
year.

He's started a think tank in Warsaw to push for the privatization he was
never allowed to complete and the reform of bloated welfare programs for the
disabled and retired farmers. ("Did you know we are No. 1 in the world in
terms of worker disability?" he says with mock pride.)

The purpose of the think tank isn't really to come up with new economic
policies, he explains, but to figure out ways of communicating about
economic policy that don't cede the moral high ground to the socialist point
of view.

And here is where Balcerowicz is at his most passionate and most
challenging. The reality, particularly in poorer and developing economies,
he says, is that money meant for the poor or the unemployed winds up in the
hands of bureaucrats, cronies and other undeserving members of the middle
class.

Over time, they weaken the work ethic and the sense of personal
responsibility while crowding out less expensive and more effective private
charity.

What is the morality, Balcerowicz asks, of supposedly pro-worker labor laws
and unemployment schemes that condemn young workers in France and Italy
to years of unemployment?

Are the poor residents of Brazil, with its extensive social-welfare
programs, really better off than the poor in such fast-growing Asian
countries as Thailand or Singapore, where taxes are low and government
programs limited?

If a socialist scheme is morally superior, then how should we explain
Poland's recent success in cutting infant mortality, improving the
environment and quintupling the number of students in graduate programs?

The great fallacy of socialist thinking, Balcerowicz says, is that without a
welfare state, there can be no welfare. -30-
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Steven Pearlstein can be reached atpearlsteins@washpost.com
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FOOTNOTE: Unfortunately Ukraine has not had an economic revolutionary.

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http://www.washingtonpost.com/wp-dyn/content/article/2007/04/10/AR2007041001480.html
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18. DNIPROPETROVSK OPERA THEATER EMBARKS ON HISTORIC
PROJECT TO PRODUCE PUCCINI & MOZART OPERAS IN UKRAINIAN

By Adrian Bryttan, Action Ukraine Report (AUR) #827, Article 18
Washington, D.C., Friday, April 13, 2007

The Dnipropetrovsk Opera Theatre in Ukraine has embarked on a historic
project: to produce and perform, in the Ukrainian language, several operas
by Puccini and Mozart.

In a post-Soviet world where musicians and singers often are forced to work
in less than ideal conditions, this is a vast and complex undertaking. It is
also a story of international cooperation in language translation, set
design and stage direction, musical supervision and financial support.

New York conductor Adrian Bryttan, a Fulbright International Scholar who is
of Ukrainian descent, has assembled an American artistic staff of stage
directors and designers to help produce the operas. A fund drive has been
launched among Ukrainian-American foundations, banking institutions and
private individuals to raise financial support.

”Part of the challenge is that these standard operas have never been
performed before in Ukraine,” Mr. Bryttan said. “This is a great opportunity
for an emerging Eastern European opera company to work with, and learn from,
American professionals.”

Internationally renowned Dale Morehouse is the stage director and his team
of designers are from the studio of John Ezell at the University of Missouri
in Kansas City.

The most complex part of this project is the new singable Ukrainian
translation meticulously created for three works: Puccini's "Suor Angelica"
and "Gianni Schicchi" and Mozart's "Cosi fan tutte".

Mr. Bryttan, initiator of this project, has translated the operas in
collaboration with Ukrainian poets and will also rehearse and conduct the
premiere performances.

This cooperative venture is an illustration of many people in different
countries donating their time and services to help the Ukrainian Opera
Theatre in Dnipropetrovsk bring new productions to the stage within a brief
period of time. The first performances are scheduled for April 10 and 18,
2007. Taking the company on an American tour is one of the goals.

Dnipropetrovsk, a city of over 1,200,000 in the technological heartland of
Ukraine, produces everything from iron ore to rockets and space equipment
world-wide. Now its singers and musicians will have a chance to benefit from
a cultural exchange of new ideas, methods and techniques in the operatic
realm.

This project is being cosponsored by the Ukrainian National Women's League
of America, Inc. All donations are tax exempt and should be sent to the
UNWLA, Inc. in New York. -30-
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Contact: Adrian Bryttan, a.bryttan@att.net
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