January 20, 2014
REUTERS/Valentyn Ogirenko
The political conflict in Ukraine has deepened since January 16, when the government of President Viktor Yanukovych pushed new laws through parliament to outlaw the public protests that have challenged Yanukovych’s rule since November. The laws also criminalize “extremist” criticism of the government and tighten rules on independent organizations of the country’s vibrant civil society.

The Yanukovych camp’s new laws parallel – and in some cases are harsher than – those adopted in recent years by the government of Russian President Vladimir Putin. Their passage immediately hardened sentiment within the opposition movement that has occupied a central square in Kyiv, the capital, demanding greater democracy, an end to official corruption, and closer Ukrainian ties with the European Union. Within days, the confrontation saw its worst violence in weeks as some protesters tried to march on the parliament building and fought police.

The January 16 laws may have dissipated the last hopes of most of the protest movement for a negotiated solution. That is the message from two of the movement’s prominent voices – Viktoria Siumar and Oleksandr Sushko, both members of a council leading the weeks-old political demonstrations at Maidan Nezalezhnosti (Independence Square) in Kyiv. Siumar is the former head of a Ukrainian media watchdog group, Telekritika; Sushko is the chairman of the Kyiv-based International Renaissance Foundation, a pro-democracy group funded by George Soros. The two published an essay in Ukrainian on January 18 that calls on Ukraine’s protesters to change their tactics by more directly – albeit nonviolently – confronting Yanukovych’s government.

Siumar and Sushko argue that Yanukovych’s lieutenants in Ukraine’s parliament forced through the new laws in violation of parliament rules. Ukrainian and international press reports say no debate was permitted and each vote was taken by a hurried show of hands.

The laws eliminate all hope for credible elections, notably in the presidential vote scheduled for next year. “Conducting any kind of legitimate elections in view of the law passed on January 16 is impossible, because it provides grounds for eliminating any non-government organizations that would try to monitor the elections by branding them as ‘foreign agents,’ for closing any internet media outlet, for imprisoning any opponent, competitor or even a critic on charges of libel or ‘extremism’,” Siumar and Sushko write.

The writers suggest that Yanukovych’s passage of the laws not only puts Ukraine on the anti-democratic path of Putin’s Russia, but was determined last month in talks between the two presidents. Putin offered Yanukovych $15 billion in financial help for Ukraine as he pressed for Ukraine to build its economic and political ties with Russia, rather than with the European Union.

In response, Sushko and Siumar say, the protest movement, which has at times drawn hundreds of thousands of Ukrainians into the streets, must now proclaim an alternative, provisional parliament, and then buttress its legitimacy by votes of support from municipal councils around the country. This provisional parliament should form “regiments of municipal militia” to take over public safety duties, and this alternative government should organize elections for city government in Kyiv, the writers say.

It is unclear, of course, whether Sushko and Siumar's prescriptions will be adopted by the protest movement. Still their essay is a sign that Yanukovych’s attempt to seize control over the protest in the streets has sharpened and deepened this conflict in potentially dangerous ways. Its relevance was underscored less than a day after they published it by the outbreak of street violence that has marked the beginning of this week in Kyiv.

Ukrainian civil society activists Viktoria Siumar and Oleksandr Sushko argue that the country's protest movement has reached a turning point. Their essay, in Ukrainian, was published January 18 by Ukrainska Pravda. An English translation is below:

The Euro-Revolution's Bifurcation Point

By Victoria Siumar and Oleksandr Sushko

The events of January 16 in the Verkhovna Rada [Ukraine’s Parliament] have become a bifurcation point for the whole protest movement that has been taking place in the country since November 21. These events have exposed the naked truth, which looks decidedly unattractive: Against the background of the largest, longest-running protests to date, which have involved, quantitatively, millions of Ukrainians, and geographically, all of Ukraine, the authorities are capable of implementing their most dearly held wishes with no issues at all.

The essence of these wishes is simple—monopoly on authority, money, and power.

On January 16, the authorities obtained a budget—the spending power and the possibility to allocate substantial funds to enforcement agencies [police and the military], thus strengthening them. And they expanded the boundaries on the use of force against those posing most serious danger to them to the utmost extent.

In fact, the law is directed against the society, against the non-government groups that have been independent of the authorities and have become the backbone of Maidan, against independent journalists and internet media.

However, there is another important upshot of these laws: the hope for elections in 2015 is now gone.

Conducting any kind of legitimate elections in view of the law passed on January 16th is impossible, because it provides grounds for eliminating any non-government organizations that would try to monitor the elections by branding them as "foreign agents", for closing any Internet media outlet, for imprisoning any opponent, competitor or even a critic on charges of libel or "extremism".

Under these conditions, elections are reduced to being a decorative means of self-legitimation for the current authorities.

Without a political consensus on the conditions and guarantees of the honesty of elections, they will not help to solve the political crisis and will not become a way out of the civil conflict.

It is worth remembering that through this law, authorities protected one of its most effective tools used for legalizing its decisions—judges, who will be the ones to first determine the list of persons to be included on the ballots (it's not going to be left to the voters or political parties to decide on that), and will then defend the final, prescribed result of these "elections."

So, under the legal conditions created on January 16th, presidential elections of 2015 are meaningless and illegitimate even before the process formally starts.

Violation of the Parliament's house rules is just a trifle, bearing witness to the fact that legal norms no longer work in Ukraine, and neither do the instruments that are supposed to fulfill the role of mediation, e. g. independent courts or an independent parliament.

It is at the very least naive to hope that the violation of Rada house rules can become a pretext for rescinding or amending the laws, given the logic of the Ukrainian authorities' actions that has been evident for the past two months.

This is a death sentence for the opposition's plans to wait for 2015 and win the presidential elections. The by-elections in five constituencies showed that voters can be bribed and Yanukovych has enough resources to do it.

A month and a half of peaceful protests made evident that the authorities are fairly capable of temporarily putting up with Maidan Nezalezhnosti being blocked, but not for long.

By and large, Maidan is just an emotional irritant for them and not an obstacle to implementing their plans of ultimately establishing the state of lawlessness and authoritarianism.

And an increase in appropriations for police as well as replacing army commanders means increased control over enforcement agencies and putting them on high alert.

Preparing a response to this in the standard frame of reference is outside the realm of possibility.

The key agreements that Yanukovych reached in Moscow involve political integration through importing the Russian political and legal model of rule (the laws of January 16), with guarantees of recognizing and legalizing the result of the 2015 elections which will be announced by the Central Electoral Commission in Kyiv.

So here is the ugly truth again: in the month and a half that the protests have been going on, the situation with the rights and freedoms in Ukraine has changed significantly to the worse.

Accepting this as a given means downgrading both the protest and its values.

Accepting this means forgetting about a peaceful transition of power in principle, because, down the road, Yanukovych will simply perennialize himself in power personally or through appointing a successor in 2020.

Accepting this means losing the creative class that will be forced to partly emigrate and partly adapt to the new conditions for the sake of survival, becoming nothing more than the authorities' servants.

The same prospect awaits the opposition because it will remain a mere decorative element in the structure of authoritarian rule.

How can the authorities' actions be countered after January 16th, given that the West recognizes Yanukovych's legitimacy (until March 2015).

Only through legitimacy of the opposition, which got the majority (over 50%) of Ukrainians' votes in 2012 and which has the support of many local councils in Ukraine.

Only through legitimate governing bodies which have to function as the alternative and be the beacon for those citizens who do not want to live under restrictions of their constitutional rights. In a purely peaceful fashion.

The basis of democracy is: the people are the source of power, and governing institutions are instruments of power.

Taking into account that the "dictatorship laws" of January 16 contradict constitutional norms, which guarantee basic rights to the citizens of Ukraine, and open the way for repressive measures on the part of the authorities, members of parliament from the opposition who have full legitimacy in the society must:

  1. Proclaim the alternative Rada [Parliament] that has to create a new basic social contract and issue specific bills aimed at its implementation.
  2. This governing body has to be recognized by decrees of local representative councils that would include a declaration affirming their recognition of the Rada's decisions.
  3. For the purposes of safeguarding public safety, the Rada has to adopt a bill forming regiments of municipal militia which will carry out these functions in various communities under the supervision of the local representative bodies.
  4. Considering that one of Maidan's and opposition's demands was the dismantling of the Berkut [riot police], this has to be addressed in one of the Rada's decrees, to be implemented in all regions.
  5. The Rada has to announce and organize local elections in Kyiv on the initiative of the community, given the fact that Kyiv doesn't have a legitimate local government. Conducting elections will be technically challenging, but perfectly doable.
  6. The Rada has to convene a Constitutional Assembly and prepare the text of a Constitution that would address the issue of creating a system of balances and counterbalances that would preclude usurpation of power and safeguard the citizens' safety and rights.
  7. The text of the Constitution can be approved through a referendum (of course, not according to the disgraceful law on referendums that is currently in force) which will be organized by local governments which will recognize the Rada.
  8. And then, with new rules in place, the election process has to begin.

All of this has to be implemented in an entirely peaceful way and doesn't entail any violent actions.

This route is fairly complicated, but not impossible. It requires decisiveness on the part of opposition members but allows to avoid violence and to build on the basis of the essential legal mechanism—the will of the people, since all other legal norms are being altogether ignored.

It has its risks for the opposition, but these are not above the risks run by members of Avtomaidan [a sub-movement of protesters who move about in their cars to picket various locations] who will not stop driving around in motorcades, or activists who will continue picketing courts where their colleagues will be tried.

It is based on the chief and probably only resource that the opposition has—the people's support. Thousands of these people have been living on Maidan for almost two months now, hundreds of thousands have invested their resources in it, several millions have invested their time, and tens of millions have lent their support.

Maidan, without political steps or legal institutions, does not give an answer to the basic issue of influence on decision-making and policy-making in the country. This means that without these political decisions and the will to implement them, Maidan's energy will be spent on warming the winter air and will peter out into years of disappointment, hopelessness and the country's further rapid degradation.

Because, looking at the rules newly introduced on January 16, it is impossible to have any guaranteed right except the right of force, and this situation will destroy market competition, business, the creative class and any creative vision, and leaves no room for any kind of development.

The right of force will be used by independent radical groups for radical actions on the community level, e. g. for individual terror and vigilante justice. And this may well become one of the worst scenarios which neither the authorities nor the opposition, if it loses the people's trust, will be able to effectively foil.

Specifically, inaction and failure of the protests, as well as the high probability of selective application of law norms will engender not only distrust for the opposition but also despondency for the country. The worst thing will be if this dejection settles in the hearts of our youth who are our main hope for change.

Another wave of emigration of those best educated and most capable of creating functioning systems is something that would suit the authorities all too well, because what it needs are servants and worker bees who will "work, not rally" at enterprises owned by those close to power—it certainly does not need free and potentially strong citizens. And this is definitely unacceptable for anyone who wants to live in their country and not be a slave.

This Sunday, people who continue to look to politicians for guidance and are mobilized around politicians want to hear something about specific steps, not listen to assurances of decisiveness.

They have been listening for a long time, they now want to act together and move forward into the future.

They want to find their role in a realistic algorithm of actions that would give hope if not for victory, then at least for pressuring the authorities for real negotiations and real concessions: punishment of those responsible for beating students, release of the arrested activists, rescinding of the law authored by Kolesnichenko and Oliynyk, and establishing the basis for the society's consensus on basic rules: ability to exercise rights and freedoms, and conducting free and fair elections.
[Translated from the Ukrainian by Miroslava Luzina]