Yurii KLIUCHKOVSKY: “Life will turn out to be richer than the law ”

Should the Law “On the opposition” be passed or not? Experts and politicians are still wracking their brains over this question. The two drafts of the law have been registered in the parliament for today. The first one was prepared by Raisa Bohatyriova jointly with her colleagues. The second one was drafted by BYuT leader Yulia Tymoshenko. This is not Tymoshenko’s first attempt; together with Oleksandr Yeliashkevych, she submitted a similar document to parliament in 1998. More than 10 draft laws concerning the opposition have been submitted to the Verkhovna Rada in the last few years, but none of them were passed.

Of course, more attention is being paid to Tymoshenko’s version now. She is the opposition leader, so the flag should be in her hands, it is claimed. Besides, her draft law includes such “interesting” moments as shadow cabinet financing on the level of the existing cabinet, transport, and premises in particular, etc. Bohatyriova’s version also mentions a shadow cabinet, but on a narrower scale. However, the BYuT and the Party of Regions’ draft laws are practically identical with respect to the opposition’s purposes, rights, and obligations.

The Conrad Adenauer Foundation held a roundtable recently, attended by parliamentarians and prominent Ukrainian experts. The status of the Ukrainian opposition, its significance, and legal regulation patterns were on the agenda. Below are the most interesting ideas raised at this meeting.

Volodymyr POLOKHALO, Member of Parliament (BYuT):

“Every country has gone indisputably down its own path to democracy. One thing is Great Britain, where the shadow cabinet is financed and another thing is Portugal, which has a law concerning the opposition. So, one cannot state whether world experience prompts or contradicts anything apropos of this. The Ukrainian variant has its own specifics; therefore the application of world experience ought to be critical, creative, and appropriate. The main thing is whether we acknowledge democratic values or not. The opposition is obviously an element of democracy in all societies; there can be no democracy without an opposition.

Former Vice-Prime Minister Kuras gave me a draft law on the opposition to review in 1995. In principle, the government at the time was in favor of passing such a law, but it was never enacted. A similar draft law has reappeared, written by Bohatyriova and Chornovil. I wouldn’t regard it as plagiarism but as “kleptomaniacal amnesia.” There are various kinds of plagiarism, there’s text borrowing and there’s idea borrowing.

“In 2005 the Party of Regions took a long time figuring out what the opposition should be like: constructive or harsh, and in the end it never defined itself. But judging from the draft law, the Party of Regions did not expect to come to power, and at the time its chances were really low.

“Thus, there are two draft laws: Bohatyriova and Tymoshenko’s. Passing the draft law on the opposition makes it possible to prove whether Ukraine is ready to grant the parliamentary opposition the functions and the status that is called the institution of a democratic opposition. Is political Ukraine ready today? Is parliament ready? Everything else is Satan’s doing. One can nag and say that Tymoshenko is offering to finance the shadow cabinet. Fine, let’s not finance it. A problem can be created out of the smallest thing.

“Finally, let’s make it for the world. It will be an example for other countries that wish to move toward democracy. Yanukovych affirmed in Brussels that he is in favor of Euro-integration. Euro-integration entails the Copenhagen criteria, so the law on the opposition will become a litmus test proving whether we are ready to implement these Copenhagen criteria.”

Yury KLIUCHKOVSKY, Member of Parliament (Our Ukraine):

“There can be various kinds of oppositions. There is an anti-state opposition, which is actually banditry, and there can be a moral opposition, which has always been called the intelligentsia in Slavic countries. These are two types of oppositions against the power. The opposition that we are talking about, a parliamentary opposition, is part of the government. It is characterized by not being included in the executive power.

“Should we talk about the status of the opposition? My colleague Bezpaly is the author of a well-known phrase: people don’t enter the opposition; they end up there. That is why one cannot acquire the status of an opposition. It is a state, not a status.

“I categorically do not countenance the possibility of local authorities opposing the executive power, or that a political opposition can exist within the local authorities. I simply do not accept these things; if we talk about them, then we forget Article 19, Part 2, concerning these restrictions of the rights of local authorities, which are constitutional. For an opposition can be focused on the Russian language question, the question of NATO membership. However, these questions lie far beyond the local authorities’ power. Can there be an opposition regarding the place where a house is to be built or a park laid out? This is not a question of an opposition here. It is a question of a majority and a minority.

“Another aspect: when we say that an opposition is anything but the executive power, one may instantly think about whether the president can be in the opposition. This thesis is being debated in Ukraine now, and I don’t regard it as an absurd one. According to the constitution, the president has the authority to govern the state, being, however, beyond the executive power. Thus, his status does not forbid him to be in the opposition politically, relying on a certain parliamentary force.

“Is it possible to speak about the rights of the opposition? It seems to me that if we speak about legislative regulations, one should regard the plenary powers of the opposition, not its rights. And here a strict definition of the opposition’s plenary powers may be useful. But first one should understand what the opposition should be like? The following question instantly arises: is there only one opposition in parliament, or several? Should it be structured, with a signed agreement, or does one get there automatically? Can there be a status neither of an opposition nor the government? If we say that there must be an agreement, then those who don’t sign it are not in the opposition. Where are they then? Who is the leader of the opposition and should it be a single leader? Can the non-recognition of one politician be part of an opposition? If we want to write a law, all these things should be regulated. Otherwise, the law won’t provide an answer to situations that may arise in parliament.

“Frankly speaking, it seems to me that we abuse the word opposition, because it is not an antidote; it is resistance. So in terms of a multiparty system, it is too risky to simplify the notion of “opposition.” In my opinion, this can spell a certain danger of the legal regulation of the opposition’s activity, because we can fix a certain state or our conceptions, which may soon become inadequate and at best simply opportunistic for today.

“That is why I have always been against the law on the opposition, because, as I must underline one more time, it will start regulating things we are not capable of regulating yet. Ukraine has some experience of opposition. An opposition has existed for quite a long time. I was in the opposition during two convocations.

“What is the main thing for the opposition politically, which is its main function? First of all, it is to control the work of the government, ensure transparency of government, not allow closed decisions to be made, but for this you don’t need any exotic functions. As for how the opposition acts in these cases, how it implements its powers, this is its internal affair. It is very dangerous to start regulating this, because it may turn out that the redaction is inadequate.

“Should we enact a shadow cabinet? I very much doubt it. I don’t see here any object of legislative regulation, especially if we start talking about budgetary financing of the shadow cabinet.

“I see very serious problems in both draft laws, and it seems to me that they are based on certain inadequate visions of what an opposition should do, how to secure this and how to obtain this from the opposition. So I am rather pessimistic about the quick enactment of a law on the opposition. Moreover, it looks as if the working group created to coordinate these two drafts will be rather barren in its activity, and one shouldn’t seriously expect any result there. Even if any of the draft laws are passed (because everybody has written that it is very necessary), even if it is signed by the president, such a law won’t bring any proper legal regulation because life will prove to be richer than the law.”