A meeting of the coalition council fully dedicated to a discussion of a package of top-priority draft laws for consideration and possible voting next Friday recently took place in Ukraine’s parliament. One of them is a draft law on parliamentary immunity, which is top-listed, according to Mykola Katerynchuk, a member of the presidential fraction.
The authors of the draft law — the leaders of the NU-NS (Viacheslav Kyrylenko) and BYuT fractions (Ivan Kyrylenko) — believe that this draft law is aimed at making the institute of parliamentary immunity meet international law standards, guaranteeing the equality of citizens before the law, fighting corruption in parliament, and putting an end to abuses of the right to parliamentary immunity. This is a rather high bar, isn’t it?
Some MPs from the coalitional fractions are convinced that everyone, including the president, should renounce immunity. Member of the BYuT Mykola Tomenko is convinced that immunity is a source of political corruption in today’s Ukraine. This problem should be tackled in a systemic way, and immunity for the president of Ukraine, parliamentarians, and judges should be abolished.
How vital is the issue of depriving MPs of immunity today? Does the cancellation of parliamentary immunity de jure mean its elimination de facto, considering the lack of transparency in the activity of the judiciary branch of power in our country? Who needs immunity more: the president or MPs, and does anyone need it at all? The Day asked our experts to answer these questions.
Svitlana KONONCHUK, Ukrainian Independent Center of Political Studies:
Immunity of the parliamentary body is a usual practice in democratic countries. Therefore, the initiatives aimed at abolishing immunity are causing misunderstandings, at the very least. From this viewpoint, the initiatives are unjustified. The very background where this initiative is being implemented is not proving that immunity prevents proceedings from being launched against a Member of Parliament. We have never had any precedent to serve as an example that because an individual is a certain MP, investigating bodies cannot charge him/her because of the Verkhovna Rada’s ban. The same thing can be said about the president’s immunity. Moreover, a president does not have absolute physical immunity. There is a procedure for a presidential impeachment, which is a form of criminal responsibility. I have heard people saying that we are going to eliminate presidential immunity and retain impeachment. The question arises: what is being eliminated in this case? Immunity is a form of bringing someone to account. Parliamentarians have their form, and the president has his own. Why is the immunity topic exaggerated by politicians on a regular basis? I cannot say for sure, but this is most likely a way to distract attention from issues that deeply concern society. Among them is the question of the privileges that are enjoyed by the people’s representatives, the question of the quality of an election system in which citizens are not able to choose their own candidate and do not even have information about the people who are already on the election lists.
On the other hand, one cannot say that the MPs are deaf or indifferent to questions of society’s development in general. Ukraine is advancing in different spheres, and there are a lot of reasonable, interesting, and perspective initiatives introduced by MPs. Another question is that there are initiatives in the sphere of political struggle, which create better conditions for political interest groups than for social interest ones. The election system is again an example. In our country it is aimed at fulfilling the political interests of certain individuals, not society. But I cannot say that our MPs are doing nothing in the sphere of the economy or environmental protection. Yes, they are probably doing this in a less qualitative and slower way than we would like them to be doing. But this is the question of joint work on the part of society and politicians.
Vitalii KULYK, head of the Center for Research on Problems of Civil Society
Immunity is implemented only when there is a threat of political prosecution of the people’s representatives and high-ranking officials. In our case, the immunity subject has an economic basis rather than being a matter of necessity. It is clear that even without immunity status, some officials allow themselves to beat up their subordinates or colleagues, knowing that nobody will punish them for this. That is not a matter of immunity. This is the first point. Second, the abolition of immunity should be a package decision including the president, government officials, and parliamentarians. However, the abolition of immunity should be confirmed by reforming the judiciary system and establishing a truly independent judiciary branch of power that would be under public control and independent from business and politicians’ influence. In such a situation there would be no need for immunity, and one could speak about a truly democratic and transparent system. At the moment, our judiciary system does not allow us to conclude that the decisions that are being passed are both democratic and just. Therefore, immunity under such conditions has both pros and cons. In my opinion, we should either eliminate everyone’s immunity or retain immunity in the way it exists now, because we do not have the entire set of conditions needed for reform. The thing is that some political forces, using their temporary advantage, can succumb to the temptation of politically persecuting their opponents.
In my opinion, a deep reform of the judiciary system can take place only if, first of all, political will exists, and second, if there is enough financial support. Although we have certain signs of political will to reform the judiciary system at the moment, we lack material support, technical support for the process. The money that is allotted for justice covers only one- tenth of what is necessary for the reform.
How exactly can society spur the government? Without a doubt, the public’s duty is to urge politicians to adopt and approve these kinds of decisions. But the thing is that society as a rule remains in thrall to illusions. For example, the population’s welfare will improve as a result of abolishing parliamentary immunity. These things are not interconnected with parliamentary immunity, and MPs’ privileges comprise only a few percent of the funds that are misused. Therefore, the abolition of parliamentary immunity will have no impact on our living standards. And society should take this factor into account.”
Vitalii BALA, Situation Modeling Agency:
I am deeply convinced that only the president can enjoy the right of immunity. Why? Because this is a subject elected in an absolutely legitimate way by all the people, no matter what his/her surname is. If a president has done something wrong, I guess one has to specify the procedure of impeachment, which is now written in a rather vague way. As for parliamentarians, I would not be categorical here. It seems to me that we should follow the European path. From the point of view of reasonability and future prospects, I think that parliamentary immunity should be partial so that at someone or other’s behest law-enforcement bodies will not be in any position to influence the decisions being passed by parliamentarians.
Dr. Maksym STRIKHA, Doctor of Physical and Mathematical Sciences, full member of the Academy of Sciences of Ukraine’s Highest School:
The question of immunity is ambiguous because every democratic state has methods of parliamentarians’ legal protection so that they can be truly effective while defending their voters’ interests, and so that they do not suffer from any political persecution. I remember the days of the campaign “Ukraine without Kuchma,” when the immunity of the opposition MPs to some extent allowed them to struggle for democratic norms, insist on conducting the investigation into Heorhii Gongadze’s murder, etc. I remember the incident, where a search of three parliamentarians was conducted at Boryspil Airport, and as a result the court determined that the militia’s actions were incorrect. Along with that, Ukrainian realities also make us think that parliamentary immunity is not only a means of avoiding punishment during lobbying and using budget funds for personal needs, etc. This is an example of the elementary, everyday boorishness of the people’s representatives. We all remember the case of the MP from a fraction of the parliamentary-governmental coalition, who punched out a traffic cop who had stopped him for a serious traffic infraction. Of course, the MP was not punished. So, the first conclusion is that there is a need for parliamentary immunity, but this immunity should refer only to elements linked to an MP’s activity as a statesman. Nor should a parliamentarian be called to account for his political statements, speeches, or voting in parliament. But it is clear that effective mechanisms should exist for instituting criminal proceedings against an MP who runs a red light or hits a DAI inspector in the face.
As for presidential immunity, I guess that the answer to this question lies within the political area. Of all the high-ranking officials the president is mostly in the sight of others and no matter how much I may want to, I cannot imagine a situation where the acting president or his predecessors would deal with a traffic inspector in this fashion. However, the principle that our current president likes to quote so much should exist in our state: “One law for everyone.” Therefore, without a doubt there should be a legal mechanism for calling the president to account if the president is acting in an openly illegal way. Today’s mechanism may be too complicated. The current impeachment procedure is one that cannot be initiated. As far as I know, the Law “On Investigatory Commissions” has not come into force yet.
When a policeman stopped King Juan Carlos Bourbon of Spain for exceeding the speed limit, the king politely paid the fine, and neither the king nor Spain’s reputation as a democratic country suffered; on the contrary, it rose. I would very much like to see the day when a traffic inspector is able to stop the president, who is driving at 100 kilometers per hour in a 90-kilometer zone, and the president apologizes, pays the fee, and drives off. We have no mechanism in our country at the moment. The president has immunity. Another question is that our society is not ruled by law. We all felt this when we heard about the disgraceful incident that took place at the Presidential Secretariat, when two very high-ranking state officials started to sort out their relationship in a totally uncivilized way.
Of course, the implementation of responsibility requires the raising of the general legal culture of society, improving the quality of the work of law- enforcement bodies, and making any provocations impossible.
Yurii YAKYMENKO, Razumkov Center for Economic and Political Studies:
As for parliamentary immunity in general, this is obviously a two-sided medal. On the one hand, there is a logical presence of forms of parliamentary immunity allowing the parliamentarian to enact his/her powers. On the other hand, these forms should be coordinated with social realities and the possibilities of legal defense via other means that are accessible to average citizens, so that there is no differentiation among citizens according to the principle “with or without immunity.” We know that European countries have parliamentary immunity, but it has a somewhat different meaning: it is limited to forms of parliamentary immunity.
Your thesis that the people’s representatives have more chances to protect themselves in any case is, in my opinion, absolutely fair. If it were a question of the positive sense of parliamentary immunity, then we would be referring to those undemocratic practices of 2000-04, conditionally speaking, when it was said that there was no limitation in the law-enforcement system in the country and that parliamentarians are prosecuted for their oppositional activity. Still, I have to admit that in this sense the situation has changed since the Orange Revolution. There is a lesser threat of parliamentarians being persecuted than there used to be.
As for the president, there are constitutional-legal grounds for this phenomenon. The president, in principle, has a different status than parliamentarians because of his being the head of state. As a result of this constitutional-legal status, he is a guarantor of territorial integrity and the state’s independence, rights, and freedoms. Therefore, he has a higher need for protection than someone elected to the highest legislative body, in view of the realization of Ukraine’s national interests. In other words, the approach to the president’s immunity and the immunity of MPs should result from the difference in their status, functions, and powers that are imposed on them. By the way, there are countries where the president cannot be called to account even if s/he commits a crime during his/her presidential term, and these are European countries. And everywhere there is a particular form of prosecuting the president with the help of the special procedure of impeachment. Therefore, when we talk about presidential immunity under our conditions, we should talk about making the procedure of impeachment less complicated, first of all, and not that presidential immunity should be totally eliminated. The president’s immunity is derived from his status. He should be protected. A parliamentarian should also be protected, but the level of protection of these two categories of politicians should be different. That is the crux of the matter.
