| ZERKALO NEDELI: AIKIDO 
Justice has to be won. Sixty years ago this simple truth was discovered by Maria Eva Duarte de Peron. It became the slogan of her husband general’s party named “Justicialist”.
Yulia Tymoshenko made struggle against injustice her political trademark.
Three Days That Shook the CEC
The “Tymoshenko vs. CEC” case, which ended in the Tymoshenko team’s quick and effective victory, set off an avalanche of commentaries, presumptions, rumors, and debates.
On August 7, representatives of the Yulia Tymoshenko Bloc submitted its candidate roll to the Central Election Commission. Eight of the fifteen CEC members found a flaw in the document and demanded corrections. The bloc’s representatives contended that the application form was filled in properly. On August 10, the deadline for the registration of candidate rolled around, and the CEC debated until midnight and finally denied registration to the Tymoshenko Bloc.
It was nothing unexpected since, by agreement between Yushchenko and Yanukovych, the CEC was divided almost equally between pro-government and pro-opposition representatives. The ruling coalition (consisting of the Regions Party, the Socialist Party, and the Communist Party) has eight members of the CEC and the post of CEC Secretary. The opposition has seven members plus the posts of CEC Chairperson and two deputies. Small wonder that one part of the commission persisted, pointing to “a violation of the election law”, and the other part stood their ground, refusing to see the violation.
Tymoshenko reacted immediately: her lawyers filed a suit with the Kyiv County Administrative Court and her campaigners organized pickets and loud protest actions at the CEC building. The “pro-coalition” members of the commission responded with a harsh statement, accusing Tymoshenko and her supporters of “rude pressure on the independent constitutional body”. On August 14 the court ruled in Tymoshenko’s favor and obliged the CEC to register the bloc’s candidate roll. The next day CEC member Mykhailo Okhendovsky, who had been the most loud spoken against registering the Tymoshenko Bloc’s candidate roll, said he welcomed the court’s decision and urged his colleagues to comply with it. So they did: the CEC unanimously registered the Tymoshenko Bloc as a participant in the race. Justice Minister Olexandr Lavrynovych assured reporters that the court’s verdict would not be appealed in higher courts.
Argument and Argumentation
The documents submitted by the Tymoshenko Bloc to the CEC for registration did not contain the candidates’ home addresses. The pro-coalition members of the CEC said it was a violation, and the pro-opposition members said it was not, and the latter were right.
The standard candidate application form has the column “place of residence”. When filling it in, the Tymoshenko Bloc candidates put down the names of their cities or villages, but did not specify their postal addresses. The pro-coalition part of the CEC said in a statement on August 13, “The name of an inhabited locality cannot be considered as a candidate’s place of residence in the sense implied by the election law. This conclusion has been made upon a systemic analysis of all the relevant norms.” That was followed by references to four articles of the election law (41, 57, 58, 107).
The lawyers for the Tymoshenko Bloc maintained that the law distinguished the terms “place of residence” and “address”. In Clause 4 of Article 41 (concerning voter rolls) these terms are separated by a comma. Besides, the law requires that both the “place of residence” and the “address” of a person be indicated in the voter register while Article 58 (concerning candidate rolls) only mentions the “place of residence”. The candidate application form approved by the CEC mentions only the “place of residence”. Article 107 (concerning complaints) specifies the term “place of residence” which is followed by the “postal address” in brackets. However, Article 58 does not contain this specification. Therefore, the lawyers argued, the Tymoshenko Bloc candidates had formal grounds not to indicate their postal addresses.
They had weightier arguments. Article 3 of the Law on Free Movement and Free Choice of Residence interprets the term “place of residence” as “the administrative-territorial entity where a person resides for more than six months in a year”. The CEC itself referred to this regulatory act back in 2004.
The last and weightiest argument was an excerpt from the Constitutional Court’s ruling of September 28, 2000. Interpreting some provisions of the Law on Privatization of the State-Owned Housing Resources, the CC (referring to the Constitution of Ukraine) stated the following: the term “place of residence” should be understood as “a village, town, or other administrative-territorial unit rather than living quarters (apartment, house, etc.)”.
Tymoshenko’s opponents had their own weighty argument: the Civil Code of Ukraine which defined the place of residence of a natural person as “a house, apartment, or other living quarters”. Most legal experts, however, viewed Tymoshenko’s argumentation as more convincing.
Equal Rights
“The equality of rights is not in their being used by all but in their being granted to all,” wrote Seneca. Not all who are able know. Not all who know are willing. Not all who are willing are able.
Tymoshenko had enough will, knowledge, and ability. Commenting on the Tymoshenko vs. CEC case, many experts earnestly admired how adroitly she made the best of the situation and turned a problem into success. However, there are grounds to suspect that Tymoshenko played a kind of gambit – she risked everything in pursuit of a spectacular checkmate.
Tymoshenko and her staff knew that all other parties and blocs indicated their candidates’ home addresses in their candidate application forms and that at least half the CEC members would have questions regarding the Tymoshenko Bloc. She must have been prepared, judging from her lawyers’ instant reaction: they came up with all the counter-evidence as soon as the CEC made public its decision not to register the bloc’s candidate roll. Tymoshenko, who is not reputed to be well-versed in law, was prompt enough to refer to the Constitutional Court’s ruling dated seven years before and related to a different issue. She knew that the pro-coalition members of the CEC would demand full home addresses, but she also knew other important things.
Firstly, she expected that the proteges of the ruling coalition would jump at this opportunity to delay the start of the canvassing campaign of the major political opponent and rival in the race.
Secondly, she knew that sooner or later her bloc would be granted the right to run the race, because the expulsion of the most powerful opposition force from the electoral process under such a petty formal pretext would expose the ruling coalition as “non-democratic”.
Thirdly, Tymoshenko was sure that the court would rule in her favor. Her opponents hoped to succeed, too. Of course, they did not expect the court to remove the Tymoshenko Bloc from the race, but they counted on traditionally postponed and prolonged hearings. Instead of a trench war, they got a blitzkrieg. Tymoshenko must have known more than her opponents did. Wonders do happen in politics, but only when they are well-prepared and well-paid.
In other words, Tymoshenko deliberately provoked the opponent to make a sharp move and then, in the best traditions of aikido, turned the attacker’s energy against him. There is one explanation of her quick and easy victory in this “fight for justice”: she had cooked the injustice beforehand.
For three days the Tymoshenko Bloc was in the limelight of all Ukrainian mass media. Comments by hundreds of politicians, experts, and analysts made it the most mentioned runner in the race. And that for free! Some politicians even commented on the Tymoshenko case just in order to make an appearance on TV.
Post-War Conclusions
This story is interesting but hardly instructive. Nevertheless, it bears out some of our earlier conclusions.
Firstly, the utterances and actions of all characters in this story finally disprove the skeptical presumption that some of the leading political players are interested in disrupting the September 30 election.
Secondly, this case shows that some political leaders are aware of the time shortage and the extremely high stakes in this game and they can be quite inventive.
Thirdly, the conflict around the Tymoshenko Bloc’s registration has demonstrated a division line within the CEC that is most likely to remain there all through the election campaign.
And finally, the Central Election Commission’s divided partisanship calls into question its independent objectivity. On one hand, its members who represent different political parties are supposed to minimize the risk of widespread election fraud. On the other hand, since members of all election commissions – from the CEC to polling station commissions – represent five major political forces, the “minor” political forces have microscopic chances to enter the parliament.
It is obviously necessary to change the principle of staffing the Central Election Commission. Regrettably, those who ought to be concerned about this problem are too busy fueling their tanks to notice.
Serhii RAKHMANIN
“Zerkalo Nedeli”, Ukraine’s International Social Political Weekly, August 18-24, 2007
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