By allowing the next the Kyiv city council and mayoral elections
to be held in October 2015, well after the presidential elections, the Constitutional
Court reversed
its own previous decision. Ihor Koliushko, head of the Institute for Political
and Legal Research is
adamant this will only affect regular elections. Since Kyiv has been
without a mayor for over a year, and the constitutionally stipulated term in
office for deputies has now ended, extra elections must still be called. All
doubtless true, but since the constitutional submission was made by lawmakers
from the ruling Party of the Regions after they stymied all parliamentary attempts
to schedule the Kyiv elections, it is safe to assume that the will to call such
elections is missing.
The reason scarcely needs to be spelled out. Kyiv has been without
a mayor for almost a year, and even earlier Leonid Chernovetsky saw his mayoral
powers seriously reduced in late 2010, when President Viktor Yanukovych
appointed Oleksandr Popov as head of the Kyiv City State Administration. Popov
is very much Yanukovych’s man and highly unpopular in Kyiv. Any honestly run elections
would almost certainly bring results unfavourable to the Party of the Regions and
to president in the run-up to and during the presidential elections in early
2015.
The Constitutional Court deputy head, Serhiy Vinokurov explained the decision by
asserting that having all the elections at the same time ensured “stability in
the formation of representative bodies.” Nowhere in the constitution is it stipulated
that all elections should take place at the same time.
In fact, the judgement seems to have little to do with the constitution at all. Election
watchdog OPORA has
indicated concern that the judgement flouts citizens’ right to local
self-government. Viktor Musiaka, a law professor and one of the authors of the
original constitution, counts
four constitutional norms breached by
the May 30 judgement (7 and 38 pertaining to local self-government; 141 – terms
in office; and 85 – the Verkhovna Rada’s obligation to
schedule elections).
Most commentators, including from the Committee of Voters of
Ukraine and the Razumkov Centre, openly say the decision was more politics than
legal theory.
Musiaka, moreover, warns that the court has created a very
dangerous precedent, which could lead other terms in office, including that of
the President, to be extended.
Such lengthened terms will presumably also be allowed for the
sake of “stability.”
Suffering from Ukraine fatigue, Western countries effectively turned a
blind eye to the total change in government in March 2010 soon after Yanukovych
was elected president. The change ignored the electoral makeup of the Verkhovna Rada, and overturned a previous Constitutional Court judgement from
September 2008. That had found that since parliament was formed on the basis of
party lists, only factions, not individuals, could form a ruling coalition.
This was subsequently ignored, and enough turncoats were found to form a
majority around the Party of the Regions. American and EU representatives
demanded only that the Constitutional Court be asked for its “assessment.” Asked
it was, and in April 2010 it came up with a judgement totally opposite to that
issued by the same judges on the basis of the same Constitution 18 months
earlier.
Since then the Constitutional Court has issued a number of
judgements that have caused bemusement, to put it mildly, to those familiar
with Ukraine’s constitution and the principle of rule of law. These included the
judgement from Oct. 1, 2010, which overturned the 2004 constitution and simply
reinstated the previousone, despite the huge number of fundamental issues this
entailed… The list of such judgements is long, but there is also a
considerable number of issues clearly pertaining to constitutionality of this
or that law that the Court has refused to consider. The most notorious concerns
the highly contentious Law on State Language Policy signed by the president in
August 2012 which strengthens the position of the Russian language and makes it
possible to run all public affairs without using the official language –
Ukrainian.
This was in such clear breach of the constitution, yet just as
clearly wanted by those in power, that refusing to examine it at all must seem
the only expedient thing to do. Expedient, that is, for those who believe the Constitutional
Court is there to serve politicians and to interpret the constitution so that
it means precisely what they choose it to mean.
Halya Coynash is a member of the Kharkiv Human Rights Protection Group.
