Thursday, December 02, 2004


I woke up this morning feeling a bit low about things here. I noticed that Maidan says the names of people buying tickets from Lviv (Lvov, Lwow) are being taken down by cashiers.

There is credible evidence that the cashiers at the train stations are keeping records taken out of passports of those who traveled to Kiev. This has been informed by a listener of "Lux FM" radio in the city of Lviv.

This information has been confirmed by another listener. She said that in ticket sales offices on Hnatyuk street in Lviv the cashier was extremely friendly to those who were traveling to Kiev, but she did record the passport data into some sort of catalogue.

If true, this is not good news and is not the conduct of entrenched powers that have been laid low by the protest. And the agreement yesterday was not an agreement at all. It was hard to tell what it was actually except for a press conference beamed back to Europe to show that Solana is doing something here. And I still feel acutely, very acutely, the clock ticking away on the protests downtown with nothing tangible to show for it at all at this point.

And at times we can wonder if we are really doing any good trying to help publicize what is going on here, especially since it is not entirely risk free.

So all of this has been cause for a bit of a funk.

I then read King Banaian this morning. He has been trying to hang back and give some perspective here. I am not in the thick of things like Discoshaman and others are. I am out in the suburbs and venture downtown to take a peek from time to time. But we do have the TV on and the radio and we are focused on each piece of news that comes in and have reached points of overload at times. So reading King has been a good way to get perspective on this even for one who is not right in the middle of it.

And he makes some good points. I also think the Rada might have come into its own with this and they might actually end up doing what legislatures are supposed to do. And I think the Supreme Court might just rule against the government too. That would be a good thing. It wouldn’t bring the finality that some might want at this point—they are exhausted so it’s easy to understand that they want this to end. But it could be what gets things moving in the right direction.

Some might think this heresy, especially being a lawyer, but I think the Supreme Court could carve out a niche for itself, a niche that would be appropriate in this system of government, by ruling in favor of the people. And this even if they have to do it in the face of what is legal here under the Constitution or the laws of the Ukraine. I keep saying this because it is true: We are not in legal territory right now. Things are not being defined by law but by the interplay of power centers, one of which now is the people on the street. These masses represent the people or at least some substantial portion of them. And they have been competing with other power centers for about 11 days now. They have won some things and other things are not so clear. But there is still power there.

This is not to say that the law is not an issue but establishing competing institutions, the Supreme Court and the Rada, is much more important right now.

If the Supreme Court sided with the people against these other centers of power, they might just put this over the top and bring about the kind of reform the people are demanding right now. In an odd way, that would pave the way for them to actually become independent. And they would earn the respect of the people by doing this, a respect that courts need in the end to do their jobs.

There can be problems with this but I think that people of goodwill in these institutions might just establish their institutions on a stronger foundation--if they play it right.

In defense of this argument, I would say that Marbury vs. Madison wasn’t so much a legal opinion as much as it was a political one and it established the power of the Court to nullify law that is unconstitutional. My argument is if the Supreme Court here is astute they may be able to establish their institution on an independent and surer foundation than it is on right now. And that is even if they do it by ignoring specific laws or consitutional provisions. Maybe they could appeal to some underlying constitutional principle instead? That might secure a role for the court as the constitutional arbiter and that could be too much for them especially in a civil law system. Or maybe they could fasten on some provision that an arguable case can be made under while ignoring the more troublesome provisions.

I think it could be done.

Anyway, thanks for the perspective King.


Anonymous said...

Hi, I asked someone about the Lviv ticket thing and the following is their reply,
"You know to be careful of information - re: the Lviv ticket buyers. Purchasers of train tickets have had to show their passport for severalyears now, it was enacted by Kuchma's government to cut down on ticket
scalping, which was prevalent because ticket prices are quite low, i.e. subsidized and a ticket from Kyiv to Lviv for a Uki citizen is about 6-7 US dollars."
I wish that it would my concerns but it does not.

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