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National Act of Freedom: about Rousseau and Rationality

The National Act of Freedom (the NAF) was issued in Ukraine on the 14th of February, 2014. The Act was prepared by the group of independent Ukrainian experts in political science, law, sociology, and economics who call themselves “1st December Initiative”. If the document’s implementation is accepted by the relevant actors, primarily, the power authorities, the opposition, and several organizations of the protesters, this law may become the first stone in a new Ukrainian state. Does the initiative have a chance to work?

The Act is a temporary constitutional document. Both adjectives are equally important here, as this principle is expected to constitute Ukrainian state till a new basic law is adopted. The document consists of the introduction and five major parts: Principles of Political Regulation, Priorities of Changes, Reestablishment of Justice, European Choice, and The Council of People’s Trust, which totals in 20 articles. When discussing the law on Hromadske.tv, one of its creators, Viacheslav Briukhovetsky, the honorary president of the National University “Kyiv-Mohyla Academy”, pointed out that the parts were to be perceived as a sole background for political compromise – an alternative that no interested party would be really satisfied with, but the only way to rescue the state. However, he admitted that specific points could be deliberated by the interested groups further.

“1st December Initiative”. Mr Briukhovetsky is in focus. Source: dailylviv.com.

State failure and Rousseau

First of all, I should mention that the NAF is explicitly called “a new social contract” by its fathers. This description evidences the scope of the issues that the document addresses: principles of governance and power legitimacy. Such ambitions of the authors also clearly show how deep the crisis  in Ukraine is, as the society is offered a tool to start building a new state. In this regard, it needs to be made clear that the document does not discuss such issues as binding will of the interested parties, which basically forms the foundation of modern Western law, and different perceptions of the Euromaidan unrest that exist in the society. Instead, the text states what should be done to all the Ukrainian people.

The Act’s introduction is a manifestation in Rousseau’s style – the authors aim to help Ukrainian people to find their true will under the conditions of a government failure to satisfy their interests. For instance, the experts “are striving to defend the rights and liberties, including the right on nonviolent protests that must serve as a constant warning to the power” and “are striving to guarantee the integrity of Ukraine and the country’s integration into the civilized space of the world and European democracy”. Obviously, these are the statements that many Ukrainian citizens, particularly in the Eastern regions, would be skeptical about. By saying this, I mean that around 21% of Ukrainians would still vote for the current President in the elections and that only 55% of the citizens would support joining the EU accordingly to the latest polls. However, the statements above, in accordance with the authors, lead to freedom as “a supreme and eternal value”, which I personally read in Rousseau’s terms as an imposition of certain laws by a leader that eventually make their subjects freer.

Easy hard steps

Coming to the regulatory part of the NAF, the document offers to return to the Constitution of 2004 as a starting point. After that, the Government of People’s Trust (the GPT) and the Central Commission on Elections are to be formed in order to hold the next Presidential and Parliament elections in 2014 – in accordance with the main law in its 2004 version. The elected governors acknowledge the legitimacy of the GPT till the formation of a new government and the creation of a new Constitution. Now, let us look at the novelties closer.

The GPT is formed by the parliamentary majority decision. This body is expected to consist of experts who do not occupy any political offices and are prohibited to participate in elections during 2 years after their membership in the GPT. Their primary duties are drafting law projects to the Parliament (these projects are necessary to make a decision upon during 14 days and can be adopted only in full) and picking candidates for regional administration offices. As one of the writers, Olexiy Panych, a doctor of philosophy, explains: “We want to put a fundamentally depoliticized government into the heart of political confrontation”.  It must be admitted that there is an obvious room for the GPT to emerge, since the opposition refuses to collaborate with the power in creating the Government at the moment. So, this structure would definitely alleviate the tension.

Another innovation is the Council of People’s Trust (the CPT). This body is formed out of the civil organizations on Maidan and consists of 25 persons. Their main functions are to monitor all governmental bills and presidential decrees (which presupposes a free access to new documents), provide monthly reports about implemeting the NAF at the Parliament hearings till a new Constitution is written, and approve the appointment of Interior Affairs Minister, Defense Minister, Attorney General, and Head of Security Office. Overall, The CPT ensures social supervision of main political decisions and key ministerial offices. Taking into account the current distrust to the ruling structures by a significant part of the population, this step seems to have appeal.

Most other powers are granted to the Parliament, whereas Presidential functions are limited. Quite crucial is that the Parliament is responsible for forming the Central Commission on Elections by 2/3 majority voting, but this choice is made out of the list of candidates that the minority and the majority form 50:50. This way, the basis for more or less honest elections is supposed to appear. Also, the Act imposes a criminal responsibility for recent violations of human rights and the Constitution, which requires an independent investigation on the violators. The last fundamental point is that the riot police called Berkut, which participated in blatant human rights violations, is to be disbanded. New riot police troops are expected to be created under the public monitoring of candidates. Mr Briukhovetsky mentioned that the economic part was written as well, but the organizers decided to keep only milestone and urgent directions in the final document.

In general, these steps are thoroughly written and convey a holistic impression. Still, they seem to be very difficult to implement. The main critique is that no game theory would recognize the necessity of making the mentioned actions by the main actors. It is even hardly possible to quantify gains and losses for the participants. Specifically, I am concerned about the role of the President, as he is still a legitimate ruler who wins the first election tour by all sociological polls. It does not seem rational for him to give away the power.

Another issue is that some possible influences are actually not taken into account in the document. Thus, the decisions of neighboring states and the stand of oligarchs simply do not exist in the offered scheme of solving the crisis. But personal sanctions and financial decisions can definitely change the situation.

In the long-run perspective, the public monitoring is expected to dissolve after holding new elections and writing a new Constitution. Thus, the suggested bodies like the GPT and CPT are to operate only as reparation mechanisms. But the main problems of Ukraine like ubiquitous corruption and selective justice that begin from above cannot be solved by means of a temporary public participation. It is quite problematic that there is no requirement in the Act for the public mechanisms of controlling power to be institutionalized further.

Has the time come?

What can be said for sure is that the Act is a new page in the history of Ukraine. Right now, it seems that the law is comparable to the Constitution of the Ukrainian National Republic of 1918, with the separation of powers being a remedy for crisis in both cases. The fact that such transitional basic law is written today evidences the scope of state dissolution in Ukraine. However, considering its popular sovereignty taste and ignorance of rational games, the NAF requires consent of many influential actors that the situation is detrimental and dead-end for them. So far, in spite of all clashes and violations, it does not look like the primary sides are ready to accept such a compromise. But the role of this document can drastically change if the situation worsens in the nearest future.

Disclaimer: the article was written on February, 16, before the tragic events that are happening in Kyiv today, February, 18.