The president urges future members of the Verkhovna Rada to waive their immunity. The prime minister says the president’s initiative is a campaign stunt. The opposition promises to support the president’s proposal. The coalition insists that parliamentary immunity must be abolished along with the presidential one.
Is the cancellation of parliamentary immunity another hot-air session or a real possibility? Immunity allows MPs to act any way they please, says President Viktor Yushchenko, who is campaigning for its abolition in the next Verkhovna Rada. Ukraine’s head of state believes this will effectively inoculate parliamentarians against corruption.
In order to be heard by the nation and his opponents, the president made an unprecedented brief televised appearance on the evening of June 20. His message was entirely dedicated to the need to cancel parliamentary immunity. “Parliament is where they make laws, not hide from them. There is no doubt whatsoever that we must put an end to abuses of parliamentary immunity. Society is sick and tired of watching blatant demonstrations of impunity and supremacy over the law and the people. The abolition of unlimited parliamentary immunity is the key to overcoming corruption in parliament,” the president said.
During his televised speech Yushchenko also sent a very sharp message to the head of Ukraine’s government, who a short while earlier had described the president’s immunity-abolition initiative as none other than populism: “I was surprised to hear that Prime Minister Viktor Yanukovych regards this as populism. Earlier, we heard repeated statements about the need to restrict MPs’ immunity. I expect his political force to return to this approach before long.”
The opposition, consisting of the BYuT and Our Ukraine, immediately expressed its enthusiastic support for Yushchenko’s proposal and promised the Ukrainian public that the members of the sixth Verkhovna Rada will be as liable to the law as ordinary citizens of Ukraine.
There is no consensus on the immunity issue among the members of the ruling coalition. Some believe that parliamentary immunity cannot be abolished under any circumstances; that the Ukrainian judicial system is not prepared for this. Others propose to abolish immunity, including for the president and judges. Ivan Bokyi, Socialist Party faction leader in the fifth Verkhovna Rada, belongs to the second group. He told The Day: “Of course, we are all for abolishing immunity. We have been proposing this step for a long time. But parliamentarian immunity must be liquidated together with the president’s. Believe me: everything will go back to normal after that.”
Oleksandr Stoian, member of the Party of Regions, points out: “The abolition of immunity isn’t the problem. The problem is that we don’t have independent judges, so a parliamentarian who takes a principled stand on a certain matter that is unacceptable to the people “upstairs” can be instantly arrested. The road to hell is paved with good intentions, you know. Therefore, we need immunity even if for MPs to be able to discharge their functions without impediment. Yes, it can be restricted, but it can’t be liquidated.” Petro Tsybenko, a member of the Communist Party, says that not only parliamentarians but also the president, ex-president, and even the president’s family must be stripped of immunity.
The implementation of President Yushchenko’s no-immunity idea would mean a complete or partial annulment of Article 80 of the Constitution, which sets forth special criminal prosecution procedures against Members of Parliament. Thus, a criminal case involving an MP can be launched only by the Prosecutor General’s Office, but not before it is authorized to do so by parliament in keeping with a resolution voted for by at least 226 MPs. The complete or partial nullification of Article 80 requires amendments to the Constitution. An amendment can be introduced when it is voted for by 300 MPs. In other words, even if the pro-presidential forces win the election in September, various polls indicate that the Orange people are not likely to come up with 300 votes in the next Verkhovna Rada. Without this number, there will be no constitutional amendments and hence no abolition of parliamentary immunity. Members of the fifth VR’s coalition like to joke that parliamentary immunity isn’t a hat you can remove. They regret that they cannot ban the use of immunity as an eternal and unfailing campaign topic.
The issue of abolishing parliamentary immunity is nothing new. President Leonid Kuchma broached this subject in the late 1990s. During a “general national referendum” held in April 2000, 89 percent of Ukrainians voted to annul Section 3, Article 80, of the Constitution, whereby members of parliament cannot be criminally prosecuted or detained without the knowledge and consent of their colleagues. The results of that plebiscite have not been implemented to this day.
A draft resolution was twice put to the vote, and both times it lacked the required 300 yeas. This is the crux of the matter: people who are “above the law” are the ones who vote on this matter. If they voted in favor of abolishing immunity, this would be a spectacular challenge, a noble gesture, but it is clear that our parliamentarians are not mature enough. Whether they ever will be is anyone’s guess.
An extraordinary event took place at the VR six years ago on June 22, when Ukraine’s MPs voted to surrender one of their own by stripping Mykola Ahafonov of his parliamentary immunity and subjecting him to criminal prosecution. The General Prosecutor’s Office charged the unfortunate associate of ex- Prime Minister Pavlo Lazarenko with having unlawfully received 24 million dollars from the state budget in 1992-97, when he was CEO of the agrarian company Naukova in Dnipropetrovsk oblast, and with transferring hard currency revenues to foreign bank accounts. Ahafonov was arrested but later released on bail for reasons of health. The case was then suspended as his physical condition became aggravated. Ahafonov died of a stroke in a Dnipropetrovsk hospital on Sept. 19, 2002.
I am bringing up the Ahafonov case here deliberately because in the 16 years of Ukraine’s independence only four other MPs have been punished in this manner. The first was Stepan Khmara. In 1990 the communist majority in parliament, led by Moroz, voted in favor of this, and Khmara was arrested right in the hall, after which he spent a year in solitary confinement. In November 1994 Ukrainian MPs agreed to prosecute Lazarenko, who had been apprehended by US law enforcement authorities. In November 2000 MP Viktor Zherdytsky, who was arrested by the German police, was stripped of his immunity.
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Article 80 of the Constitution reads that the members of the Ukrainian parliament are granted immunity; they cannot be held legally responsible for the results of a vote or for any statements made in parliament and its bodies, except for an insult or libel.
Members of Parliament cannot be subjected to criminal prosecution, detained or arrested without the Verkhovna Rada’s consent. Nor can they, their belongings, luggage, cars, homes, or offices be searched. Their telephone conversations cannot be wiretapped and no measures restricting their freedom may be applied.
A criminal case involving a parliamentarian can be opened only by the Prosecutor General of Ukraine and it must be considered by the Verkhovna Rada. The prosecutor’s submission for criminal prosecution, arrest, or administrative proceedings is placed on parliament’s agenda before any charges are pressed against an MP, an arrest warrant is issued, or a lawsuit initiated, and the parliamentarian in question is immediately notified. The MP is entitled to take part in parliament’s deliberations of his parliamentary immunity.
An MP can be relieved of his status before the expiry of his term of office in these cases: S/he tenders his resignation; Is assigned a post or is engaged in activities that are incompatible with his/her parliamentary status under the law; Is stripped of Ukrainian citizenship or leaves Ukraine to settle permanently in another country; A court ruling concerning a parliamentarian takes effect; A parliamentarian is proclaimed legally incapable or missing by a court of law; A parliamentarian is recalled by his/her electorate.
VOX POPULI
Eighty-two percent of Ukrainians are convinced that their MPs should be stripped of their parliamentary immunity, and only five percent disagree with this initiative. (Results of a poll conducted by the Kyiv International Institute for Social Studies [KMIS]).
Eighty-seven percent of the supporters of the BYuT, 85 percent of Our Ukraine voters, 79 percent of the supporters of the Communist Party of Ukraine, and 78 percent of the Party of Regions’ voter base are in favor of abolishing parliamentarian immunity.
