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12 March, 2011  ▪  Oleksandr Mykhelson

Crooked Lawmaking

A "minor" violation of the Constitution grows into a scandal with criminal undertones

On February 1, the Verkhov­­na Rada amended Uk­­raine’s Constitution to extend its own term until October 2012 and set the presidential election for March 2015. This latest “tweak” to the Basic Law clouded an unexpected storm that arose over the voting process itself. In fact, it looks like Ukrainian parliamentarism—however it is understood—is in a state of clinical death. In the past, voting on behalf of an absentee deputy who supported the proposal in question was not legal, but widespread. It was only one step from that to a situation where those pressing the button don’t even bother about having the deputy’s consent.

A game of cards

According to the Rada electronic system, 310 of the mandatory 300-deputy constitutional majority passed Constitutional amendments extending the term of the Government and local councils to five years. The reporters who were watching the vote counted that, in fact, at least 25 deputies were not present at the time of voting but their votes were counted as “ayes” by the Rada system.

The scandal gained momentum late that same night when Volodymyr Ariev, a deputy from Narodna Samooborona, informed the press that not only was he not in the Rada, he was not even in Ukraine when the vote was taken. To confirm this, Mr. Ariev sent a shot of himself with his National Deputy card taken at the airport in Washington DC.

For starters, deputies cannot even register in the session hall without their electronic cards. Every morning, the Speaker announces how many deputies are present in the Rada, but in fact he is only stating how many cards were inserted into the terminals at each seat in the hall and counted by the electronic system.

Party and faction “bosses” ten­­ded to use this for their own benefit: from time to time, they would take these electronic cards from their own legislators and the most reliable faction members would insert them into the terminals when a vote came up. This involved rushing up and down the row and hitting all the necessary “assigned” buttons within the 10 seconds given for voting. The process, known as “playing the piano” in the backrooms of the Rada, looks hilarious to journalists and visitors watching from the gallery.

Needless to say, this “piano playing” is completely illegal. Art. 3.84 of the Constitution states that “Deputies shall vote at the Verkhovna Rada sessions in person.” Back in 1998, the Constitutional Court issued Resolution №11-rp/98 to explain this item to those who, for some reason, didn’t get it the first time: “National Deputies of Ukraine shall not vote for other National Deputies of Ukraine during sessions of the Verkhovna Rada of Ukraine.” Now it was in black and white.

The catch is that it’s impossible to punish a deputy for violating the Constitution because there is no law governing this. “The system is not set right down to actual consequences,” says Viktor Musiyaka, Law Professor, and National Deputy of several convocations and a co-author of the original Constitution of Ukraine. Musiyaka believes that the penalty for “piano playing” should even be included in the Constitution itself, not in additional legislation.

Deputies have their own excuses for playing the piano. They say the legislature cannot operate efficiently without some kind of violations. For instance, when the scandal over Deputy Ariev’s card emerged, it turned out that Mykhailo Polianchych (NUNS) had once voted for Pavlo Movchan (BYT), at the request of Mr. Movchan himself, who was at Feofania Hospital at the time. Eventually, Movchan was expelled from the BYT faction, but he insisted that he had only exercised his Constitutional right to support a bill he believed was important.

Volodymyr Makeyenko, Chair of the VR Protocol Committee, has already spoken in favor of removing this requirement about personal voting from the Constitution. Obviously, this will raise a question that has been bothering many “little folk” in Ukraine for quite a while: in that case, why have 450 deputies, who cost taxpayers UAH 875m last year alone? Meanwhile, there are more specific questions to ask.

No right of transfer

The first question is, what happened to Volodymyr Ariev’s card? The most conspiratorial conclusion is that the Rada system has been hacked to make sure that the necessary voting results without actual deputies and their cards. But the deputies asked by Ukrainian Week say this is not possible. If there were a way to do this and it were used on a regular basis, they argue, this would surface very quickly and eliminate the need to collect cards and rush around voting for others.

In fact, there are two aspects to this "card game." First, most deputies don’t actually carry their cards with them. They leave them with their faction “overseers,” who hand the cards in to the Rada Secretariat when the session is over. Second, each deputy has access not only to an “original” card but two duplicates. So, if a deputy loses or leaves the original card somewhere, he or she can request a duplicate, in writing. The VR Technical Support Department then blocks the forgotten or lost card and activates a duplicate.

But Ariev’s situation is not so easy. He reported the loss of his card several months earlier and had been using a copy ever since. In the Washington airport photo, he is holding precisely the №2 card. “I doubt there was some special operation to steal my card several months back,” Ariev told Ukrainian Week in a phone call from the US. “Most likely, someone requested a duplicate on my behalf and the VR Secretariat agreed to issue and activate it while I was still abroad.”

This explanation looks fairly realistic. The final votes needed to pass Constitutional amendments were being gathered in the VR up to the very moment of the vote. According to the press, Andriy Kliuyev, the First Vice Premier, was personally in charge of this. Even though the amendments were passed with 10 extra “votes,” no one could have been certain of that on the morning of February 1. So, anything could have been going on.

However, Ariev believes this is no longer just about violating the Constitution, for which there is no prescribed punishment in law, but interference in the work of a public official. And Art. 344 of the Criminal Code of Ukraine calls for up to three years in prison for this—and abuse of office for this purpose is punished by three to five years’ imprisonment.

Technically, it’s easy to find the guilty: the Rada system makes it possible to determine the terminal from which a card voted and surveillance videos of the session can show who used the card. Ariev says that he filed the necessary complaints, not only with the VR Protocol Committee and Speaker Lytvyn, but also with the Prosecutor General’s Office, while he was still in the US. Although, the PGO had not confirmed the receipt of his claim at the time of press, but once the deputy returned to Kyiv on February 8 he could always file it in person.

A gift for times to come

The response of Ariev’s political opponents to his move was stormy. Deputy Makeyenko immediately stated he was sure Ariev was not interested in the truth: “This is a new maneuver… a PR maneuver, nice going, but there’s no complaint on file. And believe me, there won’t be one. Because even if he does, it won’t affect the vote; 310 or 309 votes doesn’t matter.”

Clearly, the pro-Presidential VR majority is confident that none of the other absentees from the fateful February 1 session will be prepared to admit that their cards were used illegally. But the VR Committee Chair is being disingenuous. According to experts polled by Ukrainian Week, a single violation of the voting procedure, never mind one this significant, is quite enough to consider the vote invalid. One classical example is last September’s canceling of the amended Constitution, which had been in effect for five years, due to violations protocol at the time that it was being amended in winter 2004.

Moreover, the Constitutional Court’s 1998 Resolution №11-rp/98, which refers to Art. 152 of the Basic Law, states clearly that voting for another deputy is a violation of protocol that entails declaring the voted law unconstitutional. According to Viktor Musiyaka, the opposition has to turn to the Constitutional Court with regard to this suspect vote. The Court will either have to cancel the results or overturn its own earlier ruling.

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