Letter to Yulia Tymoshenko

Via Email: taras@byti.org.ua
Date: 23 July 2006

Dear Yulia Tymoshenko:

As a Canadian of Ukrainian heritage, I have maintained an interest in Ukrainian affairs throughout my life. I must confess that I do not understand Ukrainian politics and attribute the bizarre action of Ukrainian politicians to "kompromat" and excessive desire for power. Nevertheless, at the risk of being accused of interfering in Ukraine's internal affairs, allow me to present an external perspective on the present parliamentary-constitutional crisis in Ukraine.

You have adamantly refused to enter into a coalition with the Party of Regions and appear to be doing everything possible to trigger new parliamentary elections this fall.

On the one hand, I agree that a government headed by Viktor Yanukovich would be disastrous for Ukraine. External to Ukraine, one could expect boycotts of Mr. Yanukovich and his officials, and a decrease in foreign investment (except, perhaps, by organized crime). Internally, one could expect further polarization of Ukrainian society and a creeping return of Stalinist terror, which was making a resurgence under the Kuchma regime.

On the other hand, there are several pressing issues that should be handled immediately and before the next parliamentary elections. Five crucial issues come to mind:
(1) Accession to the WTO
(2) Abolishment of immunity from prosecution
(3) Appointments to Constitutional Court
(4) Pricing of crude oil, natural gas and transit fees
(5) Constitutional review

In my opinion, the optimum solution would be to create an interim all-party coalition comprised of the five political parties for a period of one year. Although I am not qualified to suggest who should be the prime minister, speaker, etc. in the Verkhovna Rada, I would suggest that these people be from lower down on the party lists. Certainly, these could not include Tymoshenko, Yanukovich, Poroshenko or Kivalov (the former CEC chairman, presumably responsible for falsification of the 2004 Presidential vote).

I would urge you to consider this scenario and to formulate your position as to what conditions you would be willing to enter into such an interim all-party coalition.

Before concluding, allow me to expand on the five points listed above.

(1) Accession to the World Trade Organization:
I would have expected Ukraine to have passed all required legislation in this area over one year ago. It is crucial that Ukraine do so as soon as possible. Furthermore, Ukraine should encourage and facilitate (if possible) the accession of the Russian Federation to the WTO.

(2) Abolishment of immunity from prosecution of Verkhovna Rada deputies:
In my Reports I and II (see link below) on the 26 March 2006 parliamentary elections, I expressly stated that, although the election procedures were fair and legitimate, the "party lists" for which the people were obliged to vote were not. Even conceptually, it is impossible to fight corruption, if the corrupters themselves are elected to the Verkhovna Rada. There is worldwide consensus (including Ukraine) that this immunity should be abolished as soon as possible. Otherwise, the deputies in the Verkhovna Rada will be rightfully viewed as criminals by the peoples of the world and will be treated as such.

(3) Appointments to Constitutional Court:
The argumentation is that parliamentary immunity can only be abolished by a constitutional amendment, but that the Verkhovna Rada refuses to nominate its share of judges to the Constitutional Court. This indicates that the so-called "2005" constitution is not working and is, thus, invalid. I would argue that it should be the prerogative of the President of Ukraine to make such appointments unless and until they are superceded by nominations from the Verkhovna Rada.

(4) Pricing of crude oil, natural gas and transit fees:
My response (see link below) to your excellent article in the July 13, 2006 issue of the Wall Street Journal Europe -- reproduced in the July 13 issue of the Action Ukraine Report (AUR#731) and in your BYUT Newsletter #6 of July 17 -- has been published in AUR#735 of July 19, 2006. It is, indeed, crucial that all recipient countries of gas transited through Ukraine, as well as all supplying countries in Eurasia, be involved in the negotiations. However, interim flexible agreements may be necessary to span a period of instability that currently besets the world.

(5) Constitutional review:
I submit that the "2005" constitution, which replaced the "1996" constitution of Ukraine, is invalid for three reasons:
(a) It was negotiated by politicians under duress during the Orange Revolution crisis.
(b) The present impasse in the Verkhovna Rada indicates that this constitution is inoperable and probably never will be operable.
(c) It was drafted by politicians without consulting the people of Ukraine and without their ratification via a referendum.

Whereas Abraham Lincoln in his Gettysburg Address envisioned government "of the people, by the people, for the people"; Ukrainians are saddled with government "of politicians, by politicians, for politicians".

Article 5 of the 1996 Constitution of Ukraine expressly states that it is the Ukrainian people, and not the President, the Verkhovna Rada or the Courts, who are the final arbiters in the Ukrainian state. Similarly, articles 69, 72, 106, 155 and 156 specifically refer to referendums. (See Appendix A.)

Referendums as instruments of consensus-building and decision-making are utilized successfully in Switzerland and many countries of the world. In a series of letters on "The Canadian Constitution" (see link below), I argue forcefully that politicians should not be in charge of drafting or amending a constitution. This must be done by specifically created Constituent Assemblies under the auspices of the Constitutional Court. For it is the people, and not the politicians, who must define how they wish to be ruled by their government and its institutions. Any constitutional amendment must be ratified by the people via a referendum. All three entities -- President, Verkhovna Rada, citizens of Ukraine -- should have the ability to initiate a referendum on any question.

In my opinion, the proposed 2005 constitutional changes go too far in emasculating the powers of the President. As head of state, the President is responsible for the efficient day-to-day operation of the government and its institutions. Should the occasion arise, the President should have the power to "rule by decree", with the proviso that his decision can be overruled by appropriate legislation in the Verkhovna Rada.

On the other hand, the office of the Presidency must not be seen as a sinecure for political allies and old cronies. Once elected, the President must cut any direct connection to any of the political parties that either supported him or opposed him during the elections. He should not be involved in the political intrigues within the Verkhovna Rada. In this context, President Yushchenko should not act, nor be viewed as acting, on behalf of Nasha Ukraina.

Respectfully yours

William Zuzak, Ph.D., P.Eng.
Edmonton, Alberta, Canada
Tel: 780-428-6678
Email: mozuz@telusplanet.net

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NOTE: The articles mentioned above are available at
/tp/
by clicking on the appropriate links under Will Zuzak Letters.
Six letters concerning the Canadian Constitution, archived at
/fc/constitution/con_indx.html
outline my views on the appropriate procedures to amend a constitution.
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Appendix A: Constitution of Ukraine 1996
http://www.rada.gov.ua/const/conengl.htm

Article 5 Article 69 Article 72 Article 106 Article 155 Article 156