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27 September, 2011

Is It Ukraine's Fate To Be Ruled By the Law of the Jungle?

It takes time and dedication to break bad habits and build new norms. Building a free and democratic society starts with trustworthy institutions and the rule of law.

“Do we have any chance for empowering the people?” “Isn’t it a waste of time to talk about democracy in Ukraine?” “We are stuck in all these corrupt habits, maybe this is our destiny?”

It was hard talk, with a lot of dedicated people in the audience at the Ye Bookstores meetings in Kharkiv and L’viv in September, where I began with a lecture entitled, “20 years of independence — how to give power to the voters”.

My reaction to these questions is: Naturally Ukraine can get out of the trap of behavior stemming from the Soviet era; but after the first 20 years of independence all your optimism is at stake. But I will also say with all sincerity: This is not something predestined, and it is not simply in your genetics!!

It takes time and dedication to break bad habits and build new norms. Building a free and democratic society starts with trustworthy institutions and the rule of law.

The political motivated cases against Yulia Tymoshenko and many other former ministers have drawn international attention to the bad state of the judiciary in Ukraine today.

The charges are generally “abuse of office” or “excess of authority” which criminalize largely mainstream political decisions. These sorts of allegations could probably be used against any political leader, given a sufficient search. For example: Mr. Korniychuk is accused of incorrectly filing paperwork, Mr. Lutsenko for having exceeded his budget for the annual celebration of the Police and Mrs. Tymoshenko is charged with having caused the state losses in the form of currency exchange fees. These cases have nothing to do with corruption, although they are presented to the public as such.

Furthermore, these cases demonstrate a willingness to abuse the legal system for a selective showdown with leading political opponents in strong contrast to European values. The combination of vague legislation and presidential control over prosecutors and judges whose careers are dependent on presenting a “rubber stamp” judgment from the party in power shows the world how bad the situation is.

But what about all the unknown people in pre-detention who do not have the ability to mount a proper defense? Perhaps they, too, lack access to proper medicine and doctors? The “success-rate” of the prosecution is 99.8% and pre-detention is so widely used, that the principle of “presumption of innocence” is virtually non-existent.

It is power that rules – anyone is at risk of arbitrary detention if he does not trade with the authorities. But what is the root of this power? In democracy power stems from the people. And Ukraine is a democracy, so what’s the problem?

The problem is the fact that the country can have one election after another and yet no-one — except those few actually in power — feels he has been a party to any decision. That is probably the reason behind the widespread wish to have a possibility to vote “against all”. It is a vote of despair!

When — until 2002 — Ukraine had the mixed fifty-fifty election system, the problems with the single majority method of electing 50% of mandates were many. In this “winner takes all” - system, some could be elected thanks to split and artificial “clone”-parties — and a helping hand from “administrative resources”. You could win with only 15-20% of voters backing you, where the next candidate had perhaps 1% fewer votes. In case the “wrong man” won, it was relatively easy to change the outcome as votes were being counted. Therefore very often the person elected was an “independent” person with ties to the ruling party. And all other votes were wasted.

Francehas a system like this, but in France a politician can only be elected when he receives more than 50% of the votes. If the leader in the race does not garner 50%, the two candidates with the most votes enter a second round, and everyone has a second chance to vote. This could be an improvement if you go back to the single majority system.

The other part of the fifty-fifty election system is the proportional system which seemed at that time to have the advantage of being more difficult to falsify on a national scale.

But this system of nationwide “parties” and closed nationwide ranking of all candidates means that a party leader can decide behind the scenes whom to place in the list: What attractive persons should be at the top? Who will pay the party to be on the list? Who does the party get for allotting a place on the list?

In a system like that, the voter’s choice is reduced to choosing among the figures at the top; he has no influence on any of the other MPs he is helping to elect. These other MPs are unknown persons who may later defect to the party that pays more, or simply as soon as they sense that power is about to shift!

This proportional system could be modified and improved and could give a chance for locally trusted people, if the country was divided into regional entities, and if local people could influence who should run on behalf of the party, and if the voters on election day had the possibility of voting personally for the people they trust the most in the party they trust the most.

For months now President Yanukovych's Party of Regions has been deciding — behind the scenes and without public debate — to go back to the fifty-fifty model without learning any lesson from Ukraine's recent history.

Since the present system is bad, they will say, the new system can be presented as an improvement to introduce the worst of both systems! This is a smart way to keep the power under a thin surface of democracy, but the game is the same as always: You play with the rules, instead of by the rules!

Given this trend, I am afraid that it will take time before Ukraine can come out of its present stage of being stuck in the law of the jungle.

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