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17 November, 2019  ▪  Maksym Vikhrov

The taming of the Rada

Why did Volodymyr Zelenskiy need to lift immunity for MPs and how does this threaten Ukraine’s democracy?

One of the most resonant acts the first week of the new convocation of the Verkhovna Rada was removing immunity for MPs from the Constitution. As of 2020, any MP can be detained or arrested and charged with a crime without the approval of the legislature. This bill had been submitted by President Petro Poroshenko back in 2017, but never moved beyond the revision stage. This time, the Verkhovna Rada passed it with 373 votes in favor, nearly 70% of which was supplied by the new president’s solid majority.

But this was not the end of “gifts” for MPs. The Constitutional Court is currently reviewing a bill submitted by President Volodymyr Zelenskiy that is intended to remove the mandate to not vote personally – a corrupt practice called “piano voting,” in which one MP presses the vote buttons on several MP panels – and for absenteeism. The Rada will undoubtedly pass this bill as well, because the “servants of the people” are still keen to demonstrate their perfect discipline while the rest, other than the ex-Regionals, simply won’t dare to counter this. After all, it would mean supporting piano players and shirkers – and that would be very bad form, indeed.

It’s another issue altogether, why the new powers-that-be, despite its monopolist majority, has begun to tighten the screws on the Rada even more. Is Zelenskiy planning to turn the Verkhovna Rada from a lawmaking body to one that submissively rubber-stamps documents coming from on high?

The new government’s rush is understandable: voter expectations are so extremely high that to delay their satisfaction is risky. Where mere political will cannot “end the war” or “end the era of poverty,” there are many other ways to please the electorate. One of them is “bringing order” to the Rada, which has historically enjoyed very little support among Ukrainians. For instance, a survey by the Razumkov Center in March 2019 showed that the distrust rating of the Verkhovna Rada was 69%; only Russian media did worse, at 72%. At best, ordinary Ukrainians saw their legislature as a chaotic body and, at worst, as a club for privileged backroom deals and corruption – anything but a pillar of representative democracy. So demand for tightening the screws is very strong.

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Proposals to reduce the number of seats, covered in another bill submitted by Zelenskiy, remove immunity, and do something about piano-playing and absenteeism are all initiatives that the public will be very happy approve. This is especially so for immunity, which entire generations of Ukrainian politicos have promised to do, starting with Viktor Yushchenko in 2005. It was common to hear Ukrainians talk about immunity as a kind of caste privilege, a license to engage in lawlessness that those in power gave to each other. And so, having fulfilled this promise, the new administration immediately added a few more points to its ratings, which remain very high for now.

Of course, the real impact for the country itself is far more modest. The only thing that raises questions is the challenge to absentees, concerning which there is a proposal to include any MPs who miss more than a third of sittings during any given session without good reason. If MPs don’t feel a need to carry out their main duties, they obviously don’t need a seat in the legislature. As to having others vote for them, the situation is more complicated. On one hand, “piano-playing” is a shameful, illegitimate phenomenon that has to be rooted out as quickly as possible. But it’s also not so easy to prove this kind of voting today. The old button panels installed in the early 2000s don’t actually identify who it was that pressed on them, which means that, in court, witnesses, photos or video clips have to be presented as evidence. Yet, whatever such evidence was shown in spring 2019, it became clear that certain judges were happy to adapt to the new political circumstances. And the “not-quite-reformed” judiciary branch only fosters this. This gives rise to worries that the rule prohibiting MPs to pushing the vote buttons for others will be used against “inconvenient” MPs and generally to keep the legislature on edge. The best solution is to introduce sensor buttons that will eliminate the possibility of voting in place of another MP. Talk about the need for such panels has been going on for nearly 10 years now, but has never led to action. Speaker Andriy Parubiy said that such sensor buttons were supposed to be tested in August this year, but this never happened because of interference from the State Bureau of Investigation (SBI) and the Security Bureau of Ukraine (SBU). It’s not clear whether the new administration will introduce them.

But these are minor issues. Far more – and more serious – questions were raised by the cancelation of immunity. “MPs continue to enjoy indemnity, meaning that they can’t be held liable for policy decisions, for voting or for any other political or public statements,” says President Zelenskiy. “We’re talking about the right to charge them with criminal liability.”

In fact, immunity was never an obstacle to punishing an MP for criminal activity. When necessary, the Rada lifted immunity from Yukhym Zviahilskiy, owner of the country’s most accident-prone mine, and Pavlo Lazarenko, owner of the first major gas corporation, and another 20-odd politicians. Of course, not all of them were commensurately punished. For instance, despite an enormous outcry and the seriousness of the charges against them, both Ihor Mosiychuk and Nadia Savchenko were able to return to the legislature without hindrance. Similarly, Viktor Lozinskiy, who was sentenced to 15 years in prison for his involvement in the murder of an individual, ended up serving only four years. This, of course, is more a reflection on the work of the Prosecutor’s Office, investigative agencies, courts, and ordinary corruption and loopholes in legislation, not the current rules on immunity.

Theoretically, MPs could close ranks every time and refuse to give up their “immune” colleague to law enforcement agencies, but so far this has actually never happened in the history of independent Ukraine. When time came to lift immunity, the Verkhovna Rada has generally agreed. Perhaps the only exception was in the fall of 2018, when it refused to vote for this, and did not lift immunity from Opposition Bloc MPs Dmytro Koliesnikov, Serhiy Dunayev and Oleksandr Vilkul. But today, the Rada has a completely different configuration: to lift immunity from an elected MP, the votes of Sluha Narodu MPs would be enough.

It looks like the Zelenskiy Administration is covering all bases by establishing informal instruments for maintaining discipline, especially within the ranks of its own monopolistic majority. The synchronicity with which SN MPs press on the green button could prove to be a temporary phenomenon. The more newly-elected MPs get used to their new circumstances, the better they see the new opportunities afforded and the more susceptible they become to new temptations, the looser the presidential majority will be. As voter support slips, as it inevitably has for every single Ukrainian president so far, never mind support for their party, party discipline will also tend to suffer. And so MPs need to be made as dependent on their party bosses as possible. Removing someone from their seat for voting for other MPs or for being absent seems minor, because catching MPs on piano-playing is time-consuming and proving non-existent absences is equally difficult. However, criminal investigations are a far more serious threat. What’s more, inconvenient MPs needn’t even be jailed: it’s enough for every MP to feel that they could be taken out of the legislature in handcuffs at any time. Given the fairly “friendly” relations between Bankova and the Prosecutor’s Office and law enforcement agencies, such performances can be arranged even on a monthly basis and the necessary psychological impact on MPs is guaranteed. Coupled with the under-reformed judiciary, the opportunities for those in power are endless.

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This is equally true for the opposition, especially those who were in high office until not so long ago. With the removal of immunity, it will be far easier to arrange a day in court for predecessors. Theoretically, removing immunity brings Ukraine a lot closer to the western model of parliamentary democracy. Indemnity of one kind or another exists in all democratic countries, but immunity applied more rarely and in very specific circumstances. Still, the problem is that Ukraine’s democracy is still in the process of being formed and that means that the country needs additional preventions against an authoritarian outcome – and immunity is one of them. Back in 2015, the Venice Commission warned about this when a similar bill was submitted for vetting. And it was not empty theorizing. For instance, not long after immunity was withdrawn in Turkey in 2016, the arrest of opposition MPs began in force.

Of course, it’s a bit soon to draw parallels between Zelenskiy and Erdogan. And so far, Ukrainians don’t seem to be bothered by the effective transformation of Ukraine from a parliamentary-presidential republic to a presidential one. Some are still wallowing in post-election euphoria, others don’t see the Rada as an important institution at all, and yet others hope that the government will use its decisiveness for the general good. How far Zelenskiy’s team is prepared to go and in what direction is not clear just now – perhaps not even to the team itself. Still, it’s obvious that institutional checks and balances are growing fewer and fewer.

Translated by Lidia Wolanskyj

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