National Interests on Trial: Flawed Logic in a Flawed Political System

By Nadiya Kravets, University of Oxford DPhil Politics

Gas Politics Care of Guardian.co.uk

Photo Gas Politics Care of Guardian.co.uk

Although much has been said in the Ukrainian press about the trial of Yulia Tymoshenko, it is still unclear what she is on trial for. For abusing her executive powers as a Prime Minister when signing the gas agreements in 2009? Or for concluding, what the current government considers as disadvantageous, gas arrangements with Gazprom? In either case the accusations seem absurd. In the case of the abuse of powers, Ukrainian officials have abused public authority granted to them since independence. Thus, her selective prosecution does not make sense in a system where the courts are not independent and leads observers abroad to conclude that the trial is politically motivated. In regards to the gas agreements being disadvantageous, Tymoshenko had a different conception of the national interest than the current government, and without a clear definition in the Ukrainian laws of the ‘national interest’ one cannot try her for compliance.

Did she or didn’t she abuse her powers during this process? This question, however, rests on the assumption that what is legal or illegal in Ukraine can be clearly established, relying on the laws of Ukraine. Those of us who study Ukrainian politics know that neither the division of functions between various executive bodies nor the ‘Law of Ukraine’ are actually clear-cut. In addition, since independence existing laws have been used arbitrarily or simply ignored by successive governments and presidents. For example, consider two major international decisions made by the Ukrainian executive.

According to the Ukrainian constitution the parliament grants consent in relations to the binding character of international treaties, which means that international treaties, signed by the President of Ukraine, have to be ratified to be implemented. To avoid this immediate parliamentary approval that interfered with presidential foreign-policy making powers the executive frequently circumvented or delayed this procedure and opted for the signing of the most controversial international deals through intergovernmental agreements.

Examining the case of the Black Sea Fleet Accords in 1997, Prime Minister Pavlo Lazarenko signed accords with his Russian counterpart allowing for the division and subsequent basing of the Russian fleet on the Ukrainian territory in return for debt forgiveness and energy supplies. As argued by the opposition at the time, the deal betrayed the national interests of Ukraine, and should this agreement have been turned to the parliament for ratification, it would have certainly failed. The agreement was ratified post-factum in 1999 and linked to the inter-state Treaty of Friendship, Cooperation and Partnership as a package, allowing little manoeuvre for the parliamentarians. Moreover, by 1999 ratification was a mere formality as the division was completed and most of the agreements that regulated the stationing of the fleet, compensation for Ukraine, and debt settlement were implemented. Thus, laws in this case were bended by the executive in order to resolve the issue.

Another telling example is the reversal of the Odesa-Brody pipeline in July 2004. At the time Prime Minister Yanukovych, removed the phrase “in the direction from Odesa to Brody” from the Cabinet’s earlier resolution, enabling the reversal of the oil flow. He made this amendment without the procedural involvement of the Ministry of Fuel and Energy and the Ministry of Foreign Affairs, and in contradiction to the resolution of the National Security and Defence Council. The exclusion together with the inter-governmental oil transportation agreement he signed with Russia enabled the shipment of Russian oil through the Brody-Odesa route for export, further increasing Ukraine’s dependence on Russian energy sources and supply routes instead of allowing the country to diversify and strengthen its energy security. One could argue that this was a betrayal of the national interests of Ukraine due to the obstruction of diversification efforts and hindrance to Ukraine’s European integration (a strategic goal of Ukraine set by the parliament). In this case the reversal was personal decision of the PM rather than a collegiate decision of the Cabinet of Ministers.

Both instances illustrate that legality in executive decision-making is a vague concept, partially due to the contradictions between some of the constitutional provisions and subsequent laws and procedures that were set to enable policy-making, and partially due to the inconsistent use of these procedures. The examples also show that various governments will have a different conception of what the national interest of Ukraine is in a given situation. Some view immediate financial benefits for the budget or specific sectors as a way to evaluate whether the deal is advantageous; some will have a more long-term and comprehensive view of the problem. The lack of clarity in the Ukrainian laws on what constitutes ‘national interests’ leaves us without a way to evaluate the righteousness of one’s actions. Thus, accusations that Tymoshenko’s decision was disadvantageous for Ukraine, begs the question of disadvantageous according to whom?

Tymoshenko’s goal in her energy policies has been to uproot the intermediaries in the energy trade in Ukraine. Since mid-1990s intermediaries like RosUkrEnergo created opportunities for corruption, removed profits that should have gone to state coffers, and prevented energy diversification, thus promulgating Ukraine’s energy dependence on Russia. Cutting this ‘umbilical cord’ might have been immediately painful for some of the Ukrainian industrial producers who benefit from ‘cheap’ energy, but in the long-term it would eradicate corruption and enrich the budget. In addition, the price of energy for these industrial producers would stop being subsidised by the Ukrainian taxpayer. In the short-term the termination of ‘cheap’ energy would inevitably eradicate inefficient enterprises from the market and in the long-term the policy would make the remaining industrial producers truly globally competitive. Consequently, Tymoshenko’s conception of the national interest can be best understood in this long-term view, whereas her opponents see it as disadvantageous due to the immediate constraints it imposed on the Ukrainian, mainly energy-intensive, industrial producers. One might disagree with her view, but you cannot put beliefs on trial.

Equally, prosecuting Tymoshenko for the abuse of powers while in the office is illogical in the current political system of Ukraine, because it is selective. Each and every politician in Ukraine has abused his/her powers while in office, sometime not even in the name of personal or vested interests but because the legislature is so inconsistent that it does not allow for efficient and effective policy-making. If one truly wanted to set the record straight, one would have to go all the way back to 1991 and audit uses and abuses of public authority over the last two decades. Yes, Ukraine’s rule of law has to be strengthened and improved, but not through the selective prosecution of political opponents. It is not the best strategy for receiving accountability and legitimacy. A better strategy is to clarify policy-making procedures and functions of the branches of government, and reform the judiciary to a democratic standard by establishing independent courts, due process, and law enforcement that consistently and apolitically protects the law. Such a step would provide a long term solution for the endemic problem of office abuse in Ukraine, while giving the regime legitimacy abroad and political benefits of a true reformer at home.

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