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26 January, 2014  ▪  Yuriy Radchenko

Viktor Musiaka: "We are dealing with consequences, not reasons!”

The Ukrainian Week talks to Viktor Musiyaka, one of the authors of the Constitution of Ukraine and a professor at the Kyiv-Mohyla Academy, about the current events. Far from giving a comforting opinion, the professor offers specific guidelines for overcoming the deep political crisis.

On January 16, the Verkhovna Rada passed a slew of blatantly prohibitive laws not even by manual voting – because there was no proper counting procedure – but simply with the cry of “235 in favour” from the Chairman of the Counting Commission. That scandalous session confirmed what many experts, and judging by the conflicts on the streets, the crowds, had long assumed: there is no longer any democracy in Ukraine.

The Ukrainian Week talks to Viktor Musiyaka, one of the authors of the Constitution of Ukraine and a professor at the Kyiv-Mohyla Academy, about the current events. Far from giving a comforting opinion, the professor offers specific guidelines for overcoming the deep political crisis.

UW: Are the laws passed on January 16 legitimate? Does the passing procedure mean that the parliamentary system in Ukraine has, in fact, been destroyed?

I am frankly surprised by the fact that a number of politicians refer to the passing of these laws as the “usurpation of power” and an “anti-constitutional coup”. Both of these things took place several years ago. And today, we are dealing with consequences, rather than reasons!

After the well-known Constitutional Court decision of 2010, there is really no point in such questions. Over three years later, people should remember that the usurpation of power by means of an anti-constitutional coup took place on the decision of a body, which is supposed to guard the Fundamental Law of Ukraine, together with the President – “the guarantor of the Constitution of Ukraine, as well as human rights and freedoms and those of Ukraine’s citizens”. Thus, the first Constitution of an independent Ukraine was transformed into a fictitious one, literally stripping Ukraine of its Fundamental Law.

So, the super-presidential system under the revived quasi-constitution was not born on January 16 of this year, but has been in place for almost four years. What was the point of this "revival" in terms of its benefit for society? None. But over these few years, a vast number of “laws” were passed, which grossly ignore even the revived Constitution. The reinstatement of the 1996 Constitution returned the super presidential powers to the Head of State, and this was the one and only aim. Subsequently, even compliance with the reinstated Constitution became optional in all aspects other than provisions referring to the powers of the President. Before long, the drafting of laws to back up the over-centralised government began. It continues to this day.  It is now sufficient to mark any act as “law”, regardless of whether it complies with the Constitution or not, to make the government look legitimate.

UW: But surely society is not governed by the Constitution alone?

It has a sort of an avalanche effect. The current legal sphere is unable to standardise and regulate the most important aspects of guaranteeing and implementing human rights and freedom and those of its citizens in a due and civilised manner. It is incapable of responding to what appears to be an elementary question: what is to be done with the unconstitutionally reinstated Constitution and the myriad of anti-constitutional laws? The government, and with it the country and society, have found themselves stuck in quasi-constitutional and law-making rubbish, pseudo-legal lies and deception on the part of professional speakers and legal masterminds.

So, January’s laws as the flesh and blood of aggressive and obedient parliamentary majority, have to conclusively eliminate the very idea of possible resistance to the government. They are one of the last chords of not only a merciless battle against dissent, but also a sign of the ultimate creation of what, for the government, are organic, but absolutely undemocratic principles for their functioning.

READ ALSO: Western Role in Ukraine's Turmoil

UW: What do you see as the major violations in the passing of the January 16 laws?

Since the very passing of the January laws has significantly aggravated the socio-political situation, it is necessary to pay attention to the following:

First of all, the technical part of the process for “passing” these acts. They were registered in Parliament on January 14, 2014. In others words, the final voting procedure took place three days after registration. According to the Procedure of the Verkhovna Rada, the parliament’s actions were illegal as the legislature had no time whatsoever to examine and criticize them. It is also counter to the laws “On the Status of People’s Deputies of Ukraine” and “On the Committees and Commissions of the Verkhovna Rada of Ukraine”.

The voting itself was the latest mockery of the parliamentary system. Can MPs vote in Parliament by the raising of hands? Certainly, but the VR Procedure entails a procedure for the counting of votes and the actions of the Counting Commission. All of this was clearly ignored. Plus, we have the ruling of the Constitutional Court dated July 7, 1998, whereby “violation of the procedure for passing laws, as established by the Constitution of Ukraine, is the ground for such laws to be deemed unconstitutional”.

Secondly, the text of the passed laws is clear evidence that the parliament and President (who immediately signed these laws) ignored a whole range of the Constitution articles. For 18 years now, the Law “On Organising and Conducting Meetings, Assemblies, Marches and Demonstrations” has not been passed. One of the January laws describes in detail the prohibition of the organisation and realization of such events, but there is no mention of the right to hold them! Article 39 of the Constitution on the right to assembly and meetings has a direct application; restrictions can be imposed by the court according to the law, but once again, there is no such law!

Counter to the Constitution, the Code on Administrative Violations gives Interior Ministry bodies powers to issue permits and bans for assemblies that they should not have. It does not mention the court as body authorized to do that even though, according to the Constitution, human rights and freedoms as well as those of citizens cannot be restricted by anyone, other than the court.

The provision “not to gather in a convoy of more than five vehicles” is hardly as comical as it is seen, since the consequences of the abovementioned ban are quite serious: the police can confiscate the vehicle from the owner with subsequent payment of the sum it gets for selling such vehicle to the owner. However, a car is private property and its confiscation for this kind of a violation of traffic rules is pure nonsense.

New laws have other unacceptable provisions, but I don’t see any point in dwelling on them, because they are all the consequence of the circus we have all seen.

READ ALSO: Bohdan Futey: “The beating we saw is not just physical, but mental, too. The government wants to evoke fear in people”

UW: Are there any legal prospects for resistance, such as impeachment or a referendum? Are mechanisms for the protection of democracy and civil rights still in place?

There are no legal means for a battle against the regime, since both the government and the opposition have long been behaving outside the law. The opposition, which did not react at all to the decision of the Constitutional Court of Ukraine in 2010, cannot even give up their mandates, since there are no mechanism to nullify party lists (in other words, MPs who gave up there mandates should be replaced by other party members, and so on to the last party member).  Ironically, everyone is now illegitimate: both the government, and the opposition... Holding a referendum under this law — is just another chance for the government to stage a fake demonstration of democracy, no more and no less.

There is only one peaceful scenario now: a pact similar to the Spanish Moncloa Pact. This was the historic precedent where all antagonistic political forces in Spain, from Falangists to Communists, signed an agreement based on the common recognition of nationwide political goals and consent to suspend any political persecution.

This worked in Spain, since the leaders of its political forces were patriotically-minded, so agreed to the measures, which were clearly in the interests of the country. 

At present, Ukraine does not have such elite. But the very situation offers one more chance. I sincerely do not want any other unpredictable scenarios. But if the authorities fail to react to civil resistance – unfortunately, I cannot exclude this possibility.

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