If Verkhovna Rada is to be the hub of political developments, the parliamentary day of February 22 ended with two negatives: Prosecutor General Mykhailo Potebenko was not dismissed, nor was a new parliamentary majority coordinator elected, with the election of one postponed until March. The third no was spelt out by Verkhovna Rada Speaker Ivan Pliushch who told a German Bundestag delegation there is no reason to speak of a political crisis in Ukraine. Those who refused to vote Mr. Potebenko out of office were the factions of SDPU(o), NDP, the Greens, Regional Renaissance, Ukrainian Labor, and the Verkhovna Rada leadership. The Communists were conspicuous by their absence. The ayes were cast by the already traditional opposition: Fatherland and Rukh (Kostenko), as well as the Reforms Congress and Rukh (Udovenko). It is perhaps for this reason that they decided to put off the election of a majority coordinator, thus winning a certain period of time to clarify things inside the all too fragile majority.
Being under accusation is not pleasant, especially if the accused is a prosecutor, the more so prosecutor general of the nation. Especially if the accusers level far stronger and more emotional charges than the defense which, nevertheless, is in a clearly more advantageous position, while the jury seems to be buckling under the heavy pressure of political circumstances. The audience also looks very unfriendly. The interior is adorned with unpleasant slogans unseemly to the prosecutor’s eye. The prosecution clamors, the defense keeps silent. One would prefer not to have this kind of trial, the more so that the procedure does not require the presence of the defendant.
Mr. Potebenko did not turn up. He did not even send a deputy, as is the common practice of top officials loath to stoop to such banalities as reporting to parliament. The argument really is ironclad: the prosecutor general’s Office is not accountable to Verkhovna Rada. Indeed, the Constitution says nothing about parliamentary control or reports. It only says that the prosecutor general “shall be appointed by the president with the consent of Verkhovna Rada.” The latter can, if it so wishes, pass a vote of no confidence in him, which entails his dismissal. All this has been enshrined in the law On Prosecutors, partially invalid after adoption of the Constitution. It is the Constitutional Court that was to decide which clauses are no longer valid, but it has not yet done so due to the absence of a formal request. The main point is that all previous prosecutors general lived by this law, while Mr. Potebenko has chosen to abide by the Constitution.
He decided that, since his reporting to the parliament is not provided for in the Constitution and the law itself is rather dubious, the respective parliamentary resolution is also illegal. Thus as a law-abiding citizen he should not fulfill obviously unlawful decisions. And he did not do so.
Both sides advanced serious arguments. The opposition accuses the prosecutor general of inconsistency, lack of professionalism, systematic distortion of information about high-profile cases, outright lies, and of turning his office into the instrument for political persecution. The prosecution office regularly makes contradictory and mutually-excluding statements about the versions of Heorhy Gongadze’s disappearance, identification of the so-called Tarashcha body, bugging of the presidential office, and authenticity of Major Melnychenko’s recordings. Moreover, opposition factions think the prosecutor general of Ukraine has turned into the advocate general of the president of Ukraine in the cassette case and is trying to hush up the scandal. In their turn, those opposing Mr. Potebenko’s dismissal insist that the situation should not be painted in political rather than juridical colors and be reduced to one case only: the prosecutor general’s Office should be allowed to pursue the Gongadze case to the end, and the prosecutor general’s dismissal would only create great problems with choosing a replacement, while the body’s routine work would be paralyzed. And here is the main argument: the report and dismissal were initiated by Yuliya Tymoshenko’s confreres who are thus trying to rehabilitate the former vice premier and Fatherland Party leader in the eyes of the public by making a political issue out of a criminal case.
Failure to appear in parliament was clearly not to the prosecutor’s advantage. Ignoring parliamentary demands injured the noble feelings of deputies and prodded the opposition to reflect seriously on how to deal with the prosecutor who failed to appear to testify.
It is the Communists who did most of the reflecting. Their package of 112 votes was to have played the decisive role, for it let the opposition hope for a positive vote on February 22 on one of four draft resolutions calling for no confidence in the prosecutor general. Parliamentary corridors were even rife with rumors that the KPU faction had allegedly received a generous offer on the eve of the voting. The voting day even heard a specific sum, $10,000, allegedly offered to deputies in exchange for each vote for dismissal. The Communists were in a rather delicate but extremely advantageous bargaining situation. On the one hand, they felt it very awkward to take one of the proposed positions. Voting for no confidence, they would have automatically come under a barrage of criticism from the pro-presidential forces and the media outlets they control. In addition, they would have found it very difficult to develop their nascent (at least in their speeches) dialogue with those in power. Simultaneously, supporting Mr. Potebenko, they would have tarnished too obviously their much advertised image as opponents of the regime. Naturally, the Right opposition would have lost no time accusing them of complicity with those in power. For instance, the Trudova Ukrayina (Labor Ukraine) fraction does not conceal that they are negotiating joint actions with the Communists and even distributing portfolios in a future government. On the other hand, being in the position of a golden shareholder opened to the KPU a wide field for further political maneuver. This why the various parties continued discussing their arguments in a narrow party circle until late Wednesday night. The general line was to be flexible enough to gain maximum dividends from the existing situation. The arguments were so serious that some are said to have been ready to sacrifice their party cards.
They opted for the well-known foolproof formula: stay out of the imbroglio and look on, in other words, ignore the vote. The Communists thus managed to save face politically to an extent and not side openly with the president against whom they have been fighting for years on end. Meanwhile, the Right opposition suffered a crushing defeat, failing to gain even a more or less decent number of votes, let alone 226, for their proposals. In their turn, the pro-presidential factions again confirmed their ability to retain a stable parliamentary majority even when a considerable part of it is absent. Most of them were indifferent to the destiny of the prosecutor general, while others did not even mind him being dismissed. But fate decreed otherwise and fortunately required almost no effort.
The crisis received no impetus for further development. Retaining Mr. Potebenko in office, those in power demonstrated their stability and preparedness to counter any radical challenges from the opposition. The president’s opponents were again taught a lesson of the erroneousness of a unsystematic struggle. It is possible that the prosecutor general’s personality also creates some problems for the leadership, which will have sooner or later to drop this ballast for reasons related to his health or a change of position. However, these wordings can solve far from all problems.
