The Rada, rule of law and the buildings

In some of the commentary on the government dismissal the claim has been made that it was illegal. According to one, the issue was not placed on the agenda before the vote and that made the procedure illegal. (According to the radio today, which I heard second hand, Lytvyn, the Speaker, has been dismissed and charged with reading the Constitution. Sounds poetic but my question is, if it happened, who did it and how.)

I’m sure this is true. But my question is a more mundane one: who controls the buildings? This sounds odd, I know, coming from someone trained in the law, but in this country, a country with no tradition of rule of law and, so, no habit of rule of law, who controls the buildings is the important thing. Whoever controls the buildings here controls the government. That was the intuition of the Orange Revolutioneers and it was a good one. (Was it conscious? I don’t know. But it was effective.)

Doesn’t that set the stage for an autocrat to come in and take over? Yes, it does and that has always been the risk. My argument early on was that Yuschenko needed all the power he could get to get things done, reform being the most important. All the time he was pursuing reform he would also be setting the groundwork for rule of law institutions. That may sound inconsistent—a benign autocrat working toward rule of law. Is there really such a thing? Maybe not but I thought of all people Yuschenko could be trusted with it. Maybe he wasn’t George Washington but he was good enough for what needed to be done here. He could take charge get things moving, set in place the institutions, give them a push and relinquish power when his time came to give it up.

Was that dangerous? “Absolute power corrupts absolutely” doesn’t it? It does in the vast majority of the cases. Napoleon couldn’t do it, nor could Caesar. Washington is an example of someone who did and the club is a rather exclusive one. (Napoleon is purported to have said on his deathbed, “They wanted me to be a George Washington.”) I thought Yuschenko could do it. And if he couldn’t and became a Kuchma, the people would have what they always have had. It would be more of the same. So what would they have risked?

But things haven’t worked out that way. Yuschenko, with all the faults, has been interested in making sure that rule of law tradition is established before anything else. That is a good thing and a noble thing but you’ve got to have some firm institutions that have some power to be able to do that and make it stick. The Supreme Court looked like it had come into its own during the Orange Revolution, but it has kind of faded away. It isn’t much of a factor now and there is some indication that the government is not acting all that quickly in getting new justices approved when the time of the sitting justices is up. Does that mean a lack of interest? A country has to have a functioning and powerful judiciary to be able to have a rule of law system. This isn’t the case here--not yet, at least. (One can always hope.)

The Rada came into its own during the Orange Revolution which is another institution that has to have power for democracy to function as it should. And it is also an important institution for rule of law. But the Rada is dominated by business interests right now--that means oligarchic interests—and is not bringing credit to itself with that they are doing. Democratic institutions must have credibility to work. People have to believe in them for them to function as they should. With the vote yesterday, they are reminding me of the rogue grand juries we used to see when I was working at the US Attorney’s office in Salt Lake. They, mostly in Wyoming but Utah one too, would refuse to be controlled by the prosecutor and would indict anyone they thought was not doing their job. The local sheriff or the school board or anyone else they thought should be brought to justice for what they had done. By exceeding their mandate though they discredited themselves and rule of law in the process. Fortunately, the tradition is robust enough in the US to survive something like that.

Maybe the Rada could outlaw avian flu while they're at it? If it affected eastern business interests maybe they would.

So my argument is that control of the buildings is the major issue. If they control the buildings they control the government.

By the way, this gives a real opening for Yuschenko. Someone said that he should have milked that gas crisis for all it was worth. Refuse to cave in on any price other than the original; hunker down when the gas was turned off and blame Russia for everything. I made that argument myself. He didn’t do that and probably acted more responsibly as a result.

But this presents a major opening that is just crying to be exploited by him. The eastern magnates pull their strings and the Rada dismisses the government. Rub their noses in it. Make the point that they can’t get what they want according to the law, so they end up getting it any way they can, (and maybe any way they want to.) Tell the people that they are in it for themselves at the expense of the country, the people in both east and west Ukraine. Hang them with it. He could score points both against the oligarchs and against Yulia, who voted with the majority on this.

But of course, this will require some strategy and that is something Yuschenko and his group need to come up with. Come on guys, the door has been left wide open for you.